Tuesday, July 31, 2012

Whether or not 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.


Central to the resolution of the foregoing petition is an understanding
of the composition of the JBC as stated in the first paragraph of Section 8,
Article VIII of the Constitution. It reads:
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.
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.
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.32 It
is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except
where technical terms are employed. As much as possible, the words of the
Constitution should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say.33 Verba legis
non est recedendum – from the words of a statute there should be no
departure.34
The raison d’ être for the rule is essentially two-fold: First, because it
is assumed that the words in which constitutional provisions are couched
express the objective sought to be attained;35 and second, because the
Constitution is not primarily a lawyer’s document but essentially that of the
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
Moreover, under the maxim noscitur a sociis, where a particular word
or phrase is ambiguous in itself or is equally susceptible of various
meanings, its correct construction may be made clear and specific by
considering the company of words in which it is founded or with which it is
associated.37 This is because a word or phrase in a statute is always used in
association with other words or phrases, and its meaning may, thus, be
modified or restricted by the latter.38 The particular words, clauses and
phrases should not be studied as detached and isolated expressions, but the
whole and every part of the statute must be considered in fixing the meaning
of any of its parts and in order to produce a harmonious whole. A statute
must be so construed as to harmonize and give effect to all its provisions
whenever possible.39 In short, every meaning to be given to each word or
phrase must be ascertained from the context of the body of the statute since a
word or phrase in a statute is always used in association with other words or
phrases and its meaning may be modified or restricted by the latter.
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. The foregoing declaration is but sensible, since, as pointed out by
an esteemed former member of the Court and consultant of the JBC in his
memorandum,40 “from the enumeration of the membership of the JBC, it is
patent that each category of members pertained to a single individual
only.”
Indeed, the spirit and reason of the statute may be passed upon where
a literal meaning would lead to absurdity, contradiction, injustice, or defeat
the clear purpose of the lawmakers.42 Not any of these instances, however, is
present in the case at bench. 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 only. Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about the
appointments of members of the Supreme Court and judges of the
lower courts. At present it is the President who appoints them. If there
is a Commission on Appointments, then it is the President with the
confirmation of the Commission on Appointment. In this proposal, we
would like to establish a new office, a sort of a board composed of seven
members called the Judicial and Bar Council. And while the President
will still appoint the member of the judiciary, he will be limited to the
recommendees of this Council.
xxx xxx xxx
MR. RODRIGO. Of the seven members of the Judicial and Bar
Council, the President appoints four of them who are regular
members.
xxx xxx xxx
MR. CONCEPCION. The only purpose of the Committee is to
eliminate partisan politics.43
xxx xxx xxx
MR. RODRIGO. If my amendment is approved, then the
provision will be exactly the same as the provision in the 1935
Constitution, Article VIII, Section 5.
If we do not remove the proposed amendment on the creation
of the Judicial and Bar Council, this will be a diminution of the
appointing power of the highest magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven people who are not
elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no
uniformity in our constitutional provisions on appointments. The
members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the
President except upon recommendation or nomination of the three
names by this Committee of seven people, commissioners of the
Commission on Elections, the COA and the Commission on Civil
Service…even ambassadors, generals of the Army will not come under
this restriction. Why are we going to segregate the Judiciary from the
rest of our government in the appointment of high-ranking officials?
Another reason is that this Council will be ineffective. It will just
besmirch the honor of our President without being effective at all
because this Council will be under the influence of the President. Four
out of seven are appointees of the President and they can be
reappointed when their term ends. Therefore, they would be kowtow
the President. A fifth member is the Minister of Justice, an alter ego of
the President. Another member represents the Legislature. In all
probability, the controlling part in the legislature belongs to the
President and, therefore, this representative form the National
Assembly is also under the influence of the President. And may I say,
Mr. Presiding Officer, that event the Chief Justice of the Supreme
Court is an appointee of the President. So it is futile he will be
influence anyway by the President.44 [Emphases supplied]
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 JBC’s voting process, especially in
the event a tie is reached. The aforesaid purpose would then be rendered
illusory, defeating the precise mechanism which the Constitution itself
created. 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. They
theorize that it was so worded because at the time the said provision was
being drafted, the Framers initially intended a unicameral form of Congress.
Then, when the Constitutional Commission eventually adopted a bicameral
form of Congress, the Framers, through oversight, failed to amend Article
VIII, Section 8 of the Constitution.45 On this score, the Court cites the
insightful analysis of another member of the Court and JBC consultant,
retired Justice Consuelo Ynares-Santiago.46 Thus:
A perusal of the records of the Constitutional Commission
reveals that the composition of the JBC reflects the Commission’s
desire “to have in the Council a representation for the major
elements of the community.” xxx The ex-officio members of the
Council consist of representatives from the three main branches of
government while the regular members are composed of various
stakeholders in the judiciary. The unmistakeable tenor of Article
VIII, Section 8(1) was to treat each ex-officio member as representing
one co-equal branch of government. xxx Thus, the JBC was designed
to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.
xxx xx
No parallelism can be drawn between the representative of
Congress in the JBC and the exercise by Congress of its legislative
powers under Article VI and constituent powers under Article XVII of
the Constitution. Congress, in relation to the executive and judicial
branches of government, is constitutionally treated as another coequal
branch of in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers
requires the Senate and House of Representatives to coordinate and
act as distinct bodies in furtherance of Congress’ role under our
constitutional scheme. 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.
It is more in keeping with the co-equal nature of the three
governmental branches to assign the same weight to considerations
that any of its representatives may have regarding aspiring nominees
to the judiciary. 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. Sound reason and
principle of equality among the three branches support this
conclusion. [Emphases and underscoring supplied]
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. It is evident that the
definition of “Congress” as a bicameral body refers to its primary function in
government - to legislate.47 In the passage of laws, the Constitution is
explicit in the distinction of the role of each house in the process. The same
holds true in Congress’ non-legislative powers such as, inter alia, the power
of appropriation,48 the declaration of an existence of a state of war,49
canvassing of electoral returns for the President and Vice-President,50 and
47 1987 Constitution, Article 6 Section 27(1) - Every bill passed by the Congress shall, before it becomes a
law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and
return the same with his objections to the House where it originated, which shall enter the objections at
large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members
of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House
by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House,
it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and
the names of the Members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it.
48 1987 Constitution, Article 6 Section 24 - All appropriation, revenue or tariff bills, bills authorizing
increase of public debt, bills of local application, and private bills shall originate exclusively in the House
of Representatives, but the Senate may propose or concur with amendments.
49 1987 Constitution, Article 6 Section 23 (1) - The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power to declare the existence of a state of
war.
50 1987 Constitution, Article 7 Section 4 - The returns of every election for President and Vice-President,
duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of
the Senate and the House of Representatives in joint public session, and the Congress, upon determination
of the authenticity and due execution thereof in the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two or more shall
have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority
of all the Members of both Houses of the Congress, voting separately.
IN the exercise of these powers, the Constitution employs
precise language in laying down the roles which a particular house plays,
regardless of whether the two houses consummate an official act by voting
jointly or separately. 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 government.
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. 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.
A fortiori, a pretext of oversight cannot prevail over the more pragmatic
scheme which the Constitution laid with firmness, that is, that the JBC has a
seat for a single representative of Congress, as one of the co-equal branches
of government.
Doubtless, the Framers of our Constitution intended to create a JBC as
an innovative solution in response to the public clamor in favor of
eliminating politics in the appointment of members of the Judiciary.52 To
ensure judicial independence, they adopted a holistic approach and hoped
that, in creating a JBC, the private sector and the three branches of
government would have an active role and equal voice in the selection of the
members of the Judiciary.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.”53
To quote one former Secretary of Justice:
The present imbalance in voting power between the Legislative
and the other sectors represented in the JBC must be corrected
especially when considered vis-à-vis the avowed purpose for its
creation, i.e., to insulate the appointments in the Judiciary against
political influence. By allowing both houses of Congress to have a
representative in the JBC and by giving each representative one (1) vote
in the Council, Congress, as compared to the other members of the JBC,
is accorded greater and unwarranted influence in the appointment of judges.
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 land. The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. Constitutional
doctrines must remain steadfast no matter what may be the tides of time. It
cannot be simply made to sway and accommodate the call of situations and
much more tailor itself to the whims and caprices of the government and the
people who run it.55 Hence, any act of the government or of a public official
or employee which is contrary to the Constitution is illegal, null and void.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.56 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. They are not
nullified. In Planters Products, Inc. v. Fertiphil Corporation,57 the Court
explained:
The doctrine of operative fact, as an exception to the general
rule, only applies as a matter of equity and fair play. It nullifies the
effects of an unconstitutional law by recognizing that the existence
of a statute prior to a determination of unconstitutionality is an
operative fact and may have consequences which cannot always be
ignored. The past cannot always be erased by a new judicial
declaration.
The doctrine is applicable when a declaration of
unconstitutionality will impose an undue burden on those who have
relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in
double jeopardy or would put in limbo the acts done by a
municipality in reliance upon a law creating it.
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 respondents' 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
VI I I of the 1987 Constitution.

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