G.R. No.

202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and
REP. NIEL C. TUPAS, JR., Respondents.

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor
General (OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero
and Congressman Niel C. Tupas, Jr. (respondents), duly opposed2 by the
petitioner, former Solicitor General Francisco I. Chavez (petitioner).

By way of recapitulation, the present action stemmed from the unexpected

departure of former Chief Justice Renato C. Corona on May 29, 2012, and the
nomination of petitioner, as his potential successor. In his initiatory pleading,
petitioner asked the Court to determine 1] whether the first paragraph of Section
8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives
from each House of Congress with one (1) vote each is sanctioned by the
Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing
the same in the following manner:

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.

This disposition is immediately executory. SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due
regard to Senate Resolution Nos. 111,3 112,4 113,5 and 114, the Court set the
subject motion for oral arguments on August 2, 2012.7 On August 3, 2012, the
Court discussed the merits of the arguments and agreed, in the meantime, to
suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal
portion of the August 3, 2012 Resolution reads:

WHEREFORE, the parties are hereby directed to submit their respective

MEMORANDA within ten (10) days from notice. Until further orders, the Court
hereby SUSPENDS the effect of the second paragraph of the dispositive
portion of the Court’s July 17, 2012 Decision, which reads: "This disposition
is immediately executory."

Pursuant to the same resolution, petitioner and respondents filed their respective
memoranda.

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic,
the exercise of appointing members of the Judiciary has always been the exclusive
prerogative of the executive and legislative branches of the government. Like their
progenitor of American origins, both the Malolos Constitution and the 1935
Constitution vested the power to appoint the members of the Judiciary in the
President, subject to confirmation by the Commission on Appointments. It was
during these times that the country became witness to the deplorable practice of
aspirants seeking confirmation of their appointment in the Judiciary to ingratiate
themselves with the members of the legislative body.

Then, under the 1973 Constitution, with the fusion of the executive and legislative
powers in one body, the appointment of judges and justices ceased to be subject
of scrutiny by another body. The power became exclusive and absolute to the
Executive, subject only to the condition 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 of the
evils of political pressure and partisan activities, the members of the Constitutional
Commission saw it wise 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). The
Framers carefully worded Section 8, Article VIII of the 1987 Constitution in this
wise:

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 the moment of the creation of the JBC, Congress designated one (1)
representative to sit in the JBC to act as one of the ex-officio members. Pursuant
to the constitutional provision that Congress is entitled to one (1) representative,
each House sent a representative to the JBC, not together, but alternately or by
rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An

eighth member was added to the JBC as the two (2) representatives from
Congress began sitting simultaneously in the JBC, with each having one-half (1/2)
of a vote.

In 2001, the JBC En Banc decided to allow the representatives from the Senate
and the House of Representatives one full vote each. It has been the situation
since then.

Grounds relied upon by Respondents

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.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the
fundamental powers of government are established, limited and defined and by
which those powers are distributed among the several departments for their safe
and useful exercise for the benefit of the body politic. The Framers reposed their
wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate.
Thus, 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. 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. 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." 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." Similarly, under Section 18, the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus may be revoked or continued by the Congress, voting separately, by a vote
of at least a majority of all its Members." In all these provisions, the bicameral
nature of Congress was recognized and, clearly, the corresponding adjustments
were made as to how a matter would be handled and voted upon by its two
Houses.

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. It is very clear that the 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 function.

The underlying reason for such a limited participation can easily be discerned.
Congress has two (2) Houses. The need to recognize the existence and the role
of each House is essential considering that the Constitution employs precise
language in laying down the functions which particular House plays, regardless of
whether the two Houses consummate an official act by voting jointly or separately.
Whether in the exercise of its legislative or its non-legislative functions such as
inter alia, the power of appropriation, the declaration of an existence of a state of
war, canvassing of electoral returns for the President and Vice-President, and
impeachment, the dichotomy of each House must be acknowledged and
recognized considering the interplay between these two Houses. In all these
instances, 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,
as to the other branches of government.

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.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the

Second District of Maguindanao, submitted his well-considered position to then
Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of

Congress in the JBC in accordance with Article VIII, Section 8 (1) of the 1987
Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further
interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that
"construction and interpretation come only after it has been demonstrated that
application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one
vote each, is to negate the principle of equality among the three branches of
government which is enshrined in the Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the
rule of single representation of Congress in the JBC in order to respect and give
the right meaning to the above-quoted provision of the Constitution. (Emphases
and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC
Consultant, submitted to the Chief Justice and ex-officio JBC Chairman his
opinion, which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation
of the JBC is intended to curtail the influence of politics in Congress in the
appointment of judges, and the understanding is that seven (7) persons will
compose the JBC. As such, the interpretation of two votes for Congress runs
counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for
Congress would increase the number of JBC members to eight, which could lead
to voting deadlock by reason of even-numbered membership, and a clear violation
of 7 enumerated members in the Constitution.

In an undated position paper, then Secretary of Justice Agnes VST Devanadera

opined:

As can be gleaned from the above constitutional provision, the JBC is composed
of seven (7) representatives coming from different sectors. From the enumeration
it is patent that each category of members pertained to a single individual only.
Thus, while we do not lose sight of the bicameral nature of our legislative
department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution
is explicit and specific that "Congress" shall have only "xxx a representative." Thus,
two (2) representatives from Congress would increase the number of JBC
members to eight (8), a number beyond what the Constitution has contemplated.
In this regard, the scholarly dissection on the matter by retired Justice Consuelo
Ynares-Santiago, a former JBC consultant, is worth reiterating. 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.

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 co-equal branch in the matter of its representative in the JBC. On the other
hand, the exercise of legislative and constituent powers requires the Senate and
the 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.

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.

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.
It would not be amiss to point out, however, 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. Under the doctrine of operative facts,
actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the
doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation:

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.

Under 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.

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.

In other words, the Court cannot supply the legislative omission. According to the
rule of casus omissus "a case omitted is to be held as intentionally omitted." "The
principle proceeds from a reasonable certainty that a particular person, object or
thing has been omitted from a legislative enumeration." 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. In cases like this, no amount of
practical logic or convenience can convince the Court 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.

The suspension of the effects of the second paragraph of the dispositive portion of
the July 17, 2012 Decision of the Court, which reads, "This disposition is
immediately executory," is hereby LIFTED.SO ORDERED.