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Chavez v.

GR No. 202242, 17 July 2012


 Long before the naissance of the present Constitution, the annals of history bear witness to the fact that
the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the
executive and legislative branches of the government.
o Malolos Constitution and 1935 Constitution: Members of the Judiciary were appointed by the
President, subject to confirmation by the Commission on Appointments.
o 1973 Constitution: the appointment of judges and justices was no longer subject to the scrutiny
of another body. It was absolute, except that the appointees must have all the qualifications and
none of the disqualifications.
 Prompted by the clamor to rid the process of appointments to the Judiciary from political pressure and
partisan activities, the members of the Constitutional Commission saw the need to create a separate,
competent and independent body to recommend nominees to the President. Thus, it conceived of a body
representative of all the stakeholders in the judicial appointment process and called it the Judicial and
Bar Council (JBC).
o Its composition, term and functions are provided under Section 8, Article VIII of the Constitution:
 “Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio Members, a representative of
the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector. x x x”
 “(5) The Council shall have the principal function of recommending appointees to the
Judiciary. It may exercise such other functions and duties as the Supreme Court may
assign to it.”
 In compliance therewith, Congress, from the moment of the creation of the JBC, designated one
representative to sit in the JBC to act as one of the ex officio members. Perhaps in order to give equal
opportunity to both houses to sit in the exclusive body, the House of Representatives and the Senate
would send alternate representatives to the JBC. In other words, Congress had only one (1)
 In 1994, the composition of the JBC was substantially altered. Instead of having only seven (7) members,
an eighth (8th) member was added to the JBC as two (2) representatives from Congress began sitting in
the JBC· one from the House of Representatives and one from the Senate, with each having one-half
(1/2) of a vote.
 Then, curiously, the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the
representatives from the Senate and the House of Representatives one full vote each. At present, Sen.
Escudero and Cong. Tupas, herein respondents, simultaneously sit in the JBC as representatives of the
legislature. It is this practice that petitioner has questioned in this petition, contending as follows, stating
among others:
o Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC
shall have only one representative from Congress.
o The framers of the Constitution clearly envisioned, contemplated and decided on a JBC
composed of only seven (7) members.
o The composition of the JBC providing for three ex-officio members is purposely designed for a
balanced representation of each of the three branches of the government.
o Had the framers of the Constitution intended that the JBC composed of the one member from the
Senate and one member from the House of Representatives, they could have easily said so as
they did in the other provisions of the Constitution.
o One of the two (2) members of the JBC from Congress has no right (not even 1⁄2 right) to sit in
the said constitutional body and perform the duties and functions of a member thereof.
o The JBC cannot conduct valid proceedings as its composition is illegal and unconstitutional.
 The JBC filed its comment, it however, abstained from recommending on how this constitutional issue
should be disposed in gracious deference to the wisdom of the Court. Nonetheless, the JBC was more
than generous enough to offer the insights of various personalities previously connected with it.
o It is their theory that the two houses, the Senate and the House of Representatives, are permanent
and mandatory components of “Congress” such that the absence of either divests the term of its
substantive meaning as expressed under the Constitution. In simplistic terms, the House of
Representatives, without the Senate and vice-versa, is not Congress.
o Thus, when Section 8(1), Article VIII of the Constitution speaks of “a representative from
Congress” it should mean one representative each from both Houses which comprise the entire
o Tracing the subject provision’s history, the respondents claim that when the JBC was established,
the Framers originally envisioned a unicameral legislative body, thereby allocating “a
representative of the National Assembly” to the JBC. The phrase, however, was not modified to
aptly jive with the change to bicameralism, the legislative system finally adopted by the
Constitutional Commission on July 21, 1986. According to respondents, if the Commissioners
were made aware of the consequence of having a bicameral legislature instead of a unicameral
one, they would have made the corresponding adjustment in the representation of Congress in
the JBC.
o In other words, placing either of the respondents in the JBC will effectively deprive a house of
Congress of its representation. In the same vein, the electorate represented by Members of
Congress will lose their only opportunity to participate in the nomination process for the members
of the Judiciary, effectively diminishing the republican nature of the government.
o The respondents further argue that the allowance of two (2) representatives of Congress to be
members of the JBC does not render the latter’s purpose nugatory. While they admit that the
purpose in creating the JBC was to insulate appointments to the Judiciary from political influence,
they likewise cautioned the Court that this constitutional vision did not intend to entirely preclude
political factor in said appointments. Therefore, no evil should be perceived in the current set-up
of the JBC because two (2) members coming from Congress, whose membership to certain
political parties is irrelevant, does not necessarily amplify political partisanship in the JBC. In fact,
the presence of two (2) members from Congress will most likely provide balance as against the
other six (6) members who are undeniably presidential appointees.


Whether the conditions sine qua non for the exercise of judicial review have been met in this case. YES
 The Court views the petition as essentially an action for declaratory relief under R63 of the Rules of Civil
Procedure. The Constitution as the subject matter, and the validity and construction of Section 8 (1),
Article VIII as the issue raised, the petition should properly be considered as that which would result in
the adjudication of rights sans the execution process because the only relief to be granted is the very
declaration of the rights under the document sought to be construed. It being so, the original jurisdiction
over the petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the fact that only
questions of law are raised in the petition, an action for declaratory relief is not among those within the
original jurisdiction of this Court as provided in Section 5, Article VIII of the Constitution
 At any rate, due to its serious implications, not only to government processes involved but also to the
sanctity of the Constitution, the Court deems it more prudent to take cognizance of it. After all, the petition
is also for prohibition under Rule 65 seeking to enjoin Congress from sending two (2) representatives
with one (1) full vote each to the JBC.
 The Courts’ power of judicial review, like almost all other powers conferred by the Constitution, is subject
to several limitations, namely: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have “standing” to challenge; he must have a
personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. Generally, a party
will be allowed to litigate only when these conditions sine qua non are present, especially when the
constitutionality of an act by a co-equal branch of government is put in issue.
o Locus Standi: petitioner has the legal standing to bring the present action because he has a
personal stake in the outcome of this controversy.
 The Court disagrees with the respondents’ contention that petitioner lost his standing to
sue because he is not an official nominee for the post of Chief Justice. While it is true that
a “personal stake” on the case is imperative to have locus standi, this is not to say that
only official nominees for the post of Chief Justice can come to the Court and question the
JBC composition for being unconstitutional. The JBC likewise screens and nominates
other members of the Judiciary.
 The Court considers this a constitutional issue that must be passed upon, lest a
constitutional process be plagued by misgivings, doubts and worse, mistrust. Hence, a
citizen has a right to bring this question to the Court, clothed with legal standing and at the
same time, armed with issues of transcendental importance to society. The claim that the
composition of the JBC is illegal and unconstitutional is an object of concern, not just for
a nominee to a judicial post, but for all citizens who have the right to seek judicial
intervention for rectification of legal blunders.
 With respect to the question of transcendental importance, it is not difficult to perceive
from the opposing arguments of the parties that the determinants established in
jurisprudence are attendant in this case: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government;
and (3) the lack of any other party with a more direct and specific interest in the questions
being raised.

Whether the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom are
members of Congress, runs counter to the letter and spirit of the 1987 Constitution. YES
 From a simple reading of the above-quoted provision, it can readily be discerned that the provision is
clear and unambiguous. The first paragraph calls for the creation of a JBC and places the same under
the supervision of the Court. Then it goes to its composition where the regular members are enumerated:
a representative of the Integrated Bar, a professor of law, a retired member of the Court and a
representative from the private sector. On the second part lies the crux of the present controversy. It
enumerates the ex officio or special members of the JBC composed of the Chief Justice, who shall be its
Chairman, the Secretary of Justice and “a representative of Congress.”
 As petitioner correctly posits, the use of the singular letter “a” preceding “representative of Congress” is
unequivocal and leaves no room for any other construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may designate only one (1) representative to
the JBC. Had it been the intention that more than one (1) representative from the legislature would sit in
the JBC, the Framers could have, in no uncertain terms, so provided.
o One of the primary and basic rules in statutory construction is that where the words of a statute
are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation.
 Applying the foregoing principle to this case, it becomes apparent that the word “Congress” used in Article
VIII, Section 8(1) of the Constitution is used in its generic sense. No particular allusion whatsoever is
made on whether the Senate or the House of Representatives is being referred to, but that, in either
case, only a singular representative may be allowed to sit in the JBC.
 Considering that the language of the subject constitutional provision is plain and unambiguous, there is
no need to resort extrinsic aids such as records of the Constitutional Commission. Nevertheless, even if
the Court should proceed to look into the minds of the members of the Constitutional Commission, it is
undeniable from the records thereof that it was intended that the JBC be composed of seven (7) members
 At this juncture, it is worthy to note that the seven-member composition of the JBC serves a practical
purpose, that is, to provide a solution should there be a stalemate in voting. This underlying reason leads
the Court to conclude that a single vote may not be divided into half (1/2), between two representatives
of Congress, or among any of the sitting members of the JBC for that matter. This unsanctioned practice
can possibly cause disorder and eventually muddle the JBCÊs voting process, especially in the event a
tie is reached.
 While it would be unreasonable to expect that the Framers provide for every possible scenario, it is
sensible to presume that they knew that an odd composition is the best means to break a voting deadlock.
 The respondents insist that owing to the bicameral nature of Congress, the word “Congress” in Section
8(1), Article VIII of the Constitution should be read as including both the Senate and the House of
Representatives. On this score, the Court cites the insightful analysis of another member of the Court
and JBC consultant, retired Justice Consuelo Ynares-Santiago.
o The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as
representing one co-equal branch of government.
o “… while the latter justifies and, in fact, necessitates the separateness of the two houses of
Congress as they relate inter se, no such dichotomy need be made when Congress interacts with
the other two co-equal branches of government. The representatives of the Senate and the House
of Representatives act as such for one branch and should not have any more quantitative
influence as the other branches in the exercise of prerogatives evenly bestowed upon the three.”
 More than the reasoning provided in the above discussed rules of constitutional construction, the Court
finds the above thesis as the paramount justification of the Court’s conclusion that “Congress”, in the
context of JBC representation, should be considered as one body.
 An inter-play between the two houses is necessary in the realization of these powers causing a vivid
dichotomy that the Court cannot simply discount. Verily, each house is constitutionally granted with
powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other
chamber; and 2) in consonance with the principle of checks and balances, to the other branches of
o This, however, cannot be said in the case of JBC representation because no liaison between the
two houses exists in the workings of the JBC.
o No mechanism is required between the Senate and the House of Representatives in the
screening and nomination of judicial officers. Hence, the term “Congress” must be taken to mean
the entire legislative department.
 Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than
one voice speak, whether with one full vote or one-half (1/2) a vote each, would, as one former
congressman and member of the JBC put it, “negate the principle of equality among the three branches
of government which is enshrined in the Constitution.”
 It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members
only. Thus, any inclusion of another member, whether with one whole vote or half (1/2) of it, goes against
that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with
other members of the JBC in recommending appointees to the Judiciary is explicit. Any circumvention of
the constitutional mandate should not be countenanced for the Constitution is the supreme law of the
 As to the effect of the Court’s finding that the current composition of the JBC is unconstitutional, it bears
mentioning that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. This
rule, however, is not absolute. In the interest of fair play under the doctrine of operative facts, actions
previous to the declaration of unconstitutionality are legally recognized.
o Considering the circumstances, the Court finds the exception applicable in this case and holds
that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its
prior official actions are nonetheless valid.
 At this point, the Court takes the initiative to clarify that it is not in a position to determine as to who should
remain as the sole representative of Congress in the JBC. This is a matter beyond the province of the
Court and is best left to the determination of Congress.
 Finally, while the Court finds wisdom in respondent’s contention that both the Senate and the House of
Representatives should be equally represented in the JBC, the Court is not in a position to stamp its
imprimatur on such a construction at the risk of expanding the meaning of the Constitution as currently
worded. Needless to state, the remedy lies in the amendment of this constitutional provision. The courts
merely give effect to the lawgiver’s intent. The solemn power and duty of the Court to interpret and apply
the law does not include the power to correct, by reading into the law what is not written therein.

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council is
declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that
only one (1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1),
Article VIII of the 1987 Constitution.

[Motion for Reconsideration] 16 April 2013

 Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds:
1. that allowing only one representative from Congress in the JBC would lead to absurdity
considering its bicameral nature;
2. that the failure of the Framers to make the proper adjustment when there was a shift from
unilateralism to bicameralism was a plain oversight;
3. that two representatives from Congress would not subvert the intention of the Framers to insulate
the JBC from political partisanship; and
4. that the rationale of the Court in declaring a seven-member composition would provide a solution
should there be a stalemate is not exactly correct.
 While the Court may find some sense in the reasoning in amplification of the third and fourth grounds
listed by respondents, still, it finds itself unable to reverse the assailed decision on the principal issues
covered by the first and second grounds for lack of merit. Significantly, the conclusion arrived at, with
respect to the first and second grounds, carries greater bearing in the final resolution of this case.

 In the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted
to exude its deliberate intent which must be maintained inviolate against disobedience and defiance.
o What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
 For this reason, the Court cannot accede to the argument of plain oversight in order to justify constitutional
construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter “a” to describe
“representative of Congress”, the Filipino people through the Framers intended that Congress be entitled
to only one (1) seat in the JBC. Had the intention been otherwise, the Constitution could have, in no
uncertain terms, so provided, as can be read in its other provisions.
 A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to be in
tune with the shift to bicameralism.
o One example is Section 4, Article VII, which provides that a tie in the presidential election shall
be broken “by a majority of all the Members of both Houses of the Congress, voting separately.”
o Another is Section 8 thereof which requires the nominee to replace the Vice-President to be
confirmed “by a majority of all the Members of both Houses of the Congress, voting separately.”
 Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to their
decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents cannot
just lean on plain oversight to justify a conclusion favorable to them.
 Framers were not keen on adjusting the provision on congressional representation in the JBC because
it was not in the exercise of its primary function―to legislate. JBC was created to support the executive
power to appoint, and Congress, as one whole body, was merely assigned a contributory non-legislative
o In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government―the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department).
The total is seven (7), not eight. In so providing, the Framers simply gave recognition to the
Legislature, not because it was in the interest of a certain constituency, but in reverence to it as
a major branch of government.
 The argument that a senator cannot represent a member of the House of Representatives in the JBC
and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the Senate or the
House of Representatives, is constitutionally empowered to represent the entire Congress. It may be a
constricted constitutional authority, but it is not an absurdity.
o From this score stems the conclusion that the lone representative of Congress is entitled to one
full vote. This pronouncement effectively disallows the scheme of splitting the said vote into half
(1/2), between two representatives of Congress. Not only can this unsanctioned practice cause
disorder in the voting process, it is clearly against the essence of what the Constitution authorized.
After all, basic and reasonable is the rule that what cannot be legally done directly cannot be done
indirectly. To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
 It is also an error for respondents to argue that the President, in effect, has more influence over the JBC
simply because all of the regular members of the JBC are his appointees. The principle of checks and
balances is still safeguarded because the appointment of all the regular members of the JBC is subject
to a stringent process of confirmation by the Commission on Appointments, which is composed of
members of Congress.
 Respondents’ contention that the current irregular composition of the JBC should be accepted, simply
because it was only questioned for the first time through the present action, deserves scant consideration.
Well-settled is the rule that acts done in violation of the Constitution no matter how frequent, usual or
notorious cannot develop or gain acceptance under the doctrine of estoppel or laches, because once an
act is considered as an infringement of the Constitution it is void from the very beginning and cannot be
the source of any power or authority.
 Considering that the Court is duty bound to protect the Constitution which was ratified by the direct action
of the Filipino people, it cannot correct what respondents perceive as a mistake in its mandate. Neither
can the Court, in the exercise of its power to interpret the spirit of the Constitution, read into the law
something that is contrary to its express provisions and justify the same as correcting a perceived
inadvertence. To do so would otherwise sanction the Court action of making amendment to the
Constitution through a judicial pronouncement.
o Pursuant to this,” the Court cannot under its power of interpretation supply the omission even
though the omission may have resulted from inadvertence or because the case in question was
not foreseen or contemplated.” The Court cannot supply what it thinks the legislature would have
supplied had its attention been called to the omission, as that would be judicial legislation.
 Stated differently, the Court has no power to add another member by judicial construction.
 The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In cases
like this, no amount of practical logic or convenience can convince the Cout to perform either an excision
or an insertion that will change the manifest intent of the Framers. To broaden the scope of congressional
representation in the JBC is tantamount to the inclusion of a subject matter which was not included in the
provision as enacted. True to its constitutional mandate, the Court cannot craft and tailor constitutional
provisions in order to accommodate all of situations no matter how ideal or reasonable the proposed
solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.