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G.R. No. 202242 July 17, 2012

FRANCISCO I. CHAVEZ, Petitioner,vs.

JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPHG. ESCUDERO and REP. NIEL C. TUPAS,JR.,Respondents.

D E C I S I O N

MENDOZA,J.:

The issue at hand has been in hibernation until the

unexpected departure of Chief Justice Renato C. Coronaon May 29, 2012, and the nomination of former SolicitorGeneral Francisco I. Chavez (petitioner), as his potentialsuccessor, triggered the filing of this case. The issue hasconstantly been nagging legal minds, yet remaineddormant for lack of constitutional challenge.

As the matter is of extreme urgency considering the

constitutional deadline in the process of selecting thenominees for the vacant seat of the Chief Justice, theCourt cannot delay the resolution of the issue a daylonger. Relegating it in the meantime to the back burneris not an option.

Does the first paragraph of Section 8, Article VIII of the1987 Constitution allow more than one (1) member ofCongress to sit in the JBC? Is the practice of having two

(2) representatives from each house of Congress with one(1) vote each sanctioned by the Constitution? These arethe pivotal questions to be resolved in this original actionfor prohibition and injunction.


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Long before the naissance of the present Constitution,the annals of history bear witness to the fact that theexercise of appointing members of the Judiciary hasalways been the exclusive prerogative of the executive

and legislative branches of the government. Like theirprogenitor of American origins, both the MalolosConstitution1 and the 1935 Constitution2 had vested thepower to appoint the members of the Judiciary in thePresident, subject to confirmation by the Commission onAppointments. It was during these times that the countrybecame witness to the deplorable practice of aspirantsseeking confirmation of their appointment in the Judiciary

to ingratiate themselves with the members of thelegislative body.3

Then, with the fusion of executive and legislative powerunder the 1973 Constitution,4 the appointment of judgesand justices was no longer subject to the scrutiny ofanother body. It was absolute, except that the appointeesmust have all the qualifications and none of the

disqualifications.Prompted by the clamor to rid the process ofappointments to the Judiciary from political pressure andpartisan activities,5the members of the ConstitutionalCommission saw the need to create a separate,competent and independent body to recommendnominees to the President. Thus, it conceived of a bodyrepresentative of all the stakeholders in the judicial

appointment process and called it the Judicial and BarCouncil (JBC). Its composition, term and functions areprovided under Section 8, Article VIII of the Constitution,viz:
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Section 8. (1) A Judicial and Bar Council is hereby createdunder the supervision of the Supreme Court composed ofthe Chief Justice as ex officio Chairman, the Secretary ofJustice, and a representative of the Congress as ex officio

Members, a representative of the Integrated Bar, aprofessor of law, a retired Member of the Supreme Court,and a representative of the private sector.

(2) The regular members of the Council shall beappointed by the President for a term of four years withthe consent of the Commission on Appointments. Of theMembers first appointed, the representative of the

Integrated Bar shall serve for four years, the professor oflaw for three years, the retired Justice for two years, andthe representative of the private sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretaryex officio of the Council and shall keep a record of itsproceedings.

(4) The regular Members of the Council shall receive such

emoluments as may be determined by the SupremeCourt. The Supreme Court shall provide in its annualbudget the appropriations for the Council.

(5) The Council shall have the principal function ofrecommending appointees to the Judiciary. It mayexercise such other functions and duties as the SupremeCourt may assign to it.

In compliance therewith, Congress, from the moment ofthe creation of the JBC, designated one representative tosit in the JBC to act as one of the ex officiomembers.6 Perhaps in order to give equal opportunity toboth houses to sit in the exclusive body, the House of
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Representatives and the Senate would send alternaterepresentatives to the JBC. In other words, Congress hadonly one (1) representative.

In 1994, the composition of the JBC was substantiallyaltered. Instead of having only seven (7) members, aneighth (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 theSenate, with each having one-half (1/2) of a vote.7 Then,curiously, the JBC En Banc, in separate meetings held in2000 and 2001, decided to allow the representatives from

the Senate and the House of Representatives one fullvote each.8 At present, Senator Francis Joseph G.Escudero and Congressman Niel C. Tupas, Jr.(respondents) simultaneously sit in the JBC asrepresentatives of the legislature.

It is this practice that petitioner has questioned in thispetition,9 setting forth the following

GROUNDS FOR ALLOWANCE OF THE PETITION

IArticle VIII, Section 8, Paragraph 1 is clear, definite andneeds no interpretation in that the JBC shall have onlyone representative from Congress.IIThe framers of the Constitution clearly envisioned,

contemplated and decided on a JBC composed of onlyseven (7) members.IIIHad the framers of the Constitution intended that theJBC composed of the one member from the Senate andone member from the House of Representatives, they
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could have easily said so as they did in the otherprovisions of the Constitution.IVThe composition of the JBC providing for three ex-officio

members is purposely designed for a balancedrepresentation of each of the three branches of thegovernment.VOne of the two (2) members of the JBC from Congresshas no right (not even right) to sit in the saidconstitutional body and perform the duties andfunctions of a member thereof.

VIThe JBC cannot conduct valid proceedings as itscomposition is illegal and unconstitutional.10

On July 9, 2012, the JBC filed its Comment.11 It, however,abstained from recommending on how this constitutionalissue should be disposed in gracious deference to thewisdom of the Court. Nonetheless, the JBC was more than

generous enough to offer the insights of variouspersonalities previously connected with it.12

Through the Office of the Solicitor General (OSG),respondents defended their position as members of theJBC in their Comment13 filed on July 12, 2012. Accordingto them, the crux of the controversy is the phrase "arepresentative of Congress."14 Reverting to the basics,they cite Section 1, Article VI of the Constitution15 to

determine the meaning of the term

"Congress." It is their theory that the two houses, theSenate and the House of Representatives, are permanentand mandatory components of "Congress," such that theabsence of either divests the term of its substantive
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meaning as expressed under the Constitution. Insimplistic terms, the House of Representatives, withoutthe Senate and vice-versa, is notCongress.16 Bicameralism, as the system of choice by the

Framers, requires that both houses exercise theirrespective powers in the performance of its mandatedduty which is to legislate. Thus, when Section 8(1), ArticleVIII of the Constitution speaks of "a representative fromCongress," it should mean one representative each fromboth Houses which comprise the entire Congress.17

Tracing the subject provisions history, the respondents

claim that when the JBC was established, the Framersoriginally envisioned a unicameral legislative body,thereby allocating "a representative of the NationalAssembly" to the JBC. The phrase, however, was notmodified to

aptly jive with the change to bicameralism, the legislativesystem finally adopted by the Constitutional Commissionon July 21, 1986. According to respondents, if the

Commissioners were made aware of the consequence ofhaving a bicameral legislature instead of a unicameralone, they would have made the correspondingadjustment in the representation of Congress in the JBC.18

The ambiguity having resulted from a plain case ofinadvertence, the respondents urge the Court to lookbeyond the letter of the disputed provision because the

literal adherence to its language would produce absurdityand incongruity to the bicameral nature of Congress.19 Inother words, placing either of the respondents in the JBCwill effectively deprive a house of Congress of itsrepresentation. In the same vein, the electoraterepresented by Members of Congress will lose their only
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opportunity to participate in the nomination process forthe members of the Judiciary, effectively diminishing therepublican nature of the government.20

The respondents further argue that the allowance of two(2) representatives of Congress to be members of the JBCdoes not render the latters purpose nugatory. While theyadmit that the purpose in creating the JBC was to insulateappointments to the Judiciary from political influence,they likewise cautioned the Court that this constitutionalvision did not intend to entirely preclude political factor insaid appointments. Therefore, no evil should be perceived

in the current set-up of the JBC because two (2) memberscoming from Congress, whose membership to certainpolitical parties is irrelevant, does not necessarily amplifypolitical partisanship in the JBC. In fact, the presence oftwo (2) members from Congress will most likely providebalance as against the other six (6) members who areundeniably presidential appointees.21

The Issues

In resolving the procedural and substantive issues arisingfrom the petition, as well as the myriad of counter-arguments proffered by the respondents, the Courtsynthesized them into two:

(1) Whether or not the conditions sine qua non for theexercise of the power of judicial review have been met

in this case; and(2) Whether or not the current practice of the JBC toperform its functions with eight (8) members, two (2) ofwhom are members of Congress, runs counter to theletter and spirit of the 1987 Constitution.
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The Power of Judicial Review

In its Comment, the JBC submits that petitioner is clothedwith locusstandi to file the petition, as a citizen and

taxpayer, who has been nominated to the position ofChief Justice.22

For the respondents, however, petitioner has no "realinterest" in questioning the constitutionality of the JBCscurrent composition.23 As outlined in jurisprudence, it iswell-settled that for locus standi to lie, petitioner mustexhibit that he has been denied, or is about to be denied,of a personal right or privilege to which he is entitled.Here, petitioner failed to manifest his acceptance of hisrecommendation to the position of Chief Justice, therebydivesting him of a substantial interest in the controversy.Without his name in the official list of applicants for thepost, the respondents claim that there is no personalstake on the part of petitioner that would justify hisoutcry of unconstitutionality. Moreover, the mereallegation that this case is of transcendental importance

does not excuse the waiver of the rule on locus standi,because, in the first place, the case lacks the requisitestherefor. The respondents also question petitionersbelated filing of the petition.24Being aware that thecurrent composition of the JBC has been in practice since1994, petitioners silence for eighteen (18) years showthat the constitutional issue being raised before the Courtdoes not comply with the "earliest possible opportunity"

requirement.

Before addressing the above issues in seriatim, the Courtdeems it proper to first ascertain the nature of thepetition. Pursuant to the rule that the nature of an actionis determined by the allegations therein and the


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character of the relief sought, the Court views the petitionas essentially an action for declaratory relief under Rule63 of the 1997 Rules of Civil Procedure.25

The Constitution as the subject matter, and the validityand construction of Section 8 (1), Article VIII as the issueraised, the petition should properly be considered as thatwhich would result in the adjudication of rights sans theexecution process because the only relief to be granted isthe very declaration of the rights under the documentsought to be construed. It being so, the originaljurisdiction over the petition lies with the appropriate

Regional Trial Court (RTC). Notwithstanding the fact thatonly questions of law are raised in the petition, an actionfor declaratory relief is not among those within theoriginal jurisdiction of this Court as provided in Section 5,Article VIII of the Constitution.26

At any rate, due to its serious implications, not only togovernment processes involved but also to the sanctity ofthe Constitution, the Court deems it more prudent to take

cognizance of it. After all, the petition is also forprohibition under Rule 65 seeking to enjoin Congressfrom sending two (2) representatives with one (1) fullvote each to the JBC.

The Courts power of judicial review, like almost all otherpowers conferred by the Constitution, is subject toseveral limitations, namely: (1) there must be an actual

case or controversy calling for the exercise of judicialpower; (2) the person challenging the act must have"standing" to challenge; he must have a personal andsubstantial interest in the case, such that he hassustained or will sustain, direct injury as a result of itsenforcement; (3) the question of constitutionality must be


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raised at the earliest possible opportunity; and (4) theissue of constitutionality must be the very lis mota of thecase.27Generally, a party will be allowed to litigate onlywhen 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.

Anent locus standi, the question to be answered is this:does the party possess a personal stake in the outcomeof the controversy as to assure that there is real,concrete and legal conflict of rights and duties from theissues presented before the Court? In David v.

Macapagal-Arroyo,28

the Court summarized the rules onlocus standi as culled from jurisprudence. There, it washeld that taxpayers, voters, concerned citizens, andlegislators may be accorded standing to sue, providedthat the following requirements are met: (1) cases involveconstitutional issues; (2) for taxpayers, there must be aclaim of illegal disbursement of public funds or that thetax measure is unconstitutional; (3) for voters, there must

be a showing of obvious interest in the validity of theelection law in question; (4) for concerned citizens, theremust be a showing that the issues raised are oftranscendental importance which must be settled early;and (5) for legislators, there must be a claim that theofficial action complained of infringes upon theirprerogatives as legislators.

In public suits, the plaintiff, representing the general

public, asserts a "public right" in assailing an allegedlyillegal official action. The plaintiff may be a person who isaffected no differently from any other person, and can besuing as a "stranger," or as a "citizen" or "taxpayer."Thus, taxpayers have been allowed to sue where there isa claim that public funds are illegally disbursed or that


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public money is being deflected to any improper purpose,or that public funds are wasted through the enforcementof an invalid or unconstitutional law. Of greater importthan the damage caused by the illegal expenditure of

public funds is the mortal wound inflicted upon thefundamental law by the enforcement of an invalidstatute.29

In this case, petitioner seeks judicial intervention as ataxpayer, a concerned citizen and a nominee to theposition of Chief Justice of the Supreme Court. As ataxpayer, petitioner invokes his right to demand that the

taxes he and the rest of the citizenry have been paying tothe government are spent for lawful purposes. Accordingto petitioner, "since the JBC derives financial support forits functions, operation and proceedings from taxes paid,petitioner possesses as taxpayer both right and legalstanding to demand that the JBCs proceedings are nottainted with illegality and that its composition and actionsdo not violate the Constitution."30

Notably, petitioner takes pains in enumerating pastactions that he had brought before the Court where hislegal standing was sustained. Although this inventory isunnecessary to establish locus standi because obviously,not every case before the Court exhibits similar issuesand facts, the Court recognizes the petitioners right tosue in this case. Clearly, petitioner has the legal standingto bring the present action because he has a personal

stake in the outcome of this controversy.

The Court disagrees with the respondents contentionthat petitioner lost his standing to sue because he is notan official nominee for the post of Chief Justice. While it istrue that a "personal stake" on the case is imperative to


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have locus standi, this is not to say that only officialnominees for the post of Chief Justice can come to theCourt and question the JBC composition for beingunconstitutional. The JBC likewise screens and nominates

other members of the Judiciary. Albeit heavily publicizedin this regard, the JBCs duty is not at all limited to thenominations for the highest magistrate in the land. A vastnumber of aspirants to judicial posts all over the countrymay be affected by the Courts ruling. More importantly,the legality of the very process of nominations to thepositions in the Judiciary is the nucleus of thecontroversy. The Court considers this a constitutional

issue that must be passed upon, lest a constitutionalprocess be plagued by misgivings, doubts and worse,mistrust. Hence, a citizen has a right to bring thisquestion to the Court, clothed with legal standing and atthe same time, armed with issues of transcendentalimportance to society. The claim that the composition ofthe JBC is illegal and unconstitutional is an object ofconcern, not just for a nominee to a judicial post, but for

all citizens who have the right to seek judicialintervention for rectification of legal blunders.

With respect to the question of transcendentalimportance, it is not difficult to perceive from theopposing arguments of the parties that the determinantsestablished in jurisprudence are attendant in this case:(1) the character of the funds or other assets involved inthe case; (2) the presence of a clear case of disregard ofa constitutional or statutory prohibition by the publicrespondent agency or instrumentality of the government;and (3) the lack of any other party with a more direct andspecific interest in the questions being raised.31 Theallegations of constitutional violations in this case are not


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empty attacks on the wisdom of the other branches ofthe government. The allegations are substantiated byfacts and, therefore, deserve an evaluation from theCourt. The Court need not elaborate on the legal and

societal ramifications of the issues raised. It cannot begainsaid that the JBC is a constitutional innovation crucialin the selection of the magistrates in our judicial system.

The Composition of the JBC

Central to the resolution of the foregoing petition is anunderstanding of the composition of the JBC as stated inthe first paragraph of Section 8, Article VIII of theConstitution. It reads:

Section 8. (1) A Judicial and Bar Council is hereby createdunder the supervision of the Supreme Court composed ofthe Chief Justice as ex officio Chairman, the Secretary ofJustice, and a representative of the Congress as ex officioMembers, a representative of the Integrated Bar, aprofessor 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, itcan readily be discerned that the provision is clear andunambiguous. The first paragraph calls for the creation ofa JBC and places the same under the supervision of theCourt. Then it goes to its composition where the regularmembers are enumerated: a representative of the

Integrated Bar, a professor of law, a retired member ofthe Court and a representative from the private sector.On the second part lies the crux of the presentcontroversy. It enumerates the ex officio or specialmembers of the JBC composed of the Chief Justice, who


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shall be its Chairman, the Secretary of Justice and "arepresentative of Congress."

As petitioner correctly posits, the use of the singular

letter "a" preceding "representative of Congress" isunequivocal and leaves no room for any otherconstruction. It is indicative of what the members of theConstitutional Commission had in mind, that is, Congressmay 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 statutoryconstruction is that where the words of a statute areclear, plain, and free from ambiguity, it must be given itsliteral meaning and applied without attemptedinterpretation.32 It is a well-settled principle ofconstitutional construction that the language employed inthe Constitution must be given their ordinary meaning

except where technical terms are employed. As much aspossible, the words of the Constitution should beunderstood in the sense they have in common use. Whatit says according to the text of the provision to beconstrued compels acceptance and negates the power ofthe courts to alter it, based on the postulate that theframers and the people mean what they say.33Verbalegis non est recedendum from the words of a statute

there should be no departure.34

The raison d tre for the rule is essentially two-fold: First, because it is assumed that the words in whichconstitutional provisions are couched express theobjective sought to be attained;35 and second, because


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the Constitution is not primarily a lawyers document butessentially that of the people, in whose consciousness itshould ever be present as an important condition for therule of law to prevail. 36

Moreover, under the maxim noscitur a sociis, where aparticular word or phrase is ambiguous in itself or isequally susceptible of various meanings, its correctconstruction may be made clear and specific byconsidering the company of words in which it is foundedor with which it is associated.37 This is because a word orphrase in a statute is always used in association with

other words or phrases, and its meaning may, thus, bemodified or restricted by the latter.38 The particularwords, clauses and phrases should not be studied asdetached and isolated expressions, but the whole andevery part of the statute must be considered in fixing themeaning of any of its parts and in order to produce aharmonious whole. A statute must be so construed as toharmonize and give effect to all its provisions whenever

possible.

39

In short, every meaning to be given to eachword or phrase must be ascertained from the context ofthe body of the statute since a word or phrase in astatute is always used in association with other words orphrases and its meaning may be modified or restricted bythe latter.

Applying the foregoing principle to this case, it becomesapparent that the word "Congress" used in Article VIII,

Section 8(1) of the Constitution is used in its genericsense. No particular allusion whatsoever is made onwhether the Senate or the House of Representatives isbeing referred to, but that, in either case, only a singularrepresentative may be allowed to sit in the JBC. Theforegoing declaration is but sensible, since, as pointed


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out by an esteemed former member of the Court andconsultant of the JBC in his memorandum,40 "from theenumeration of the membership of the JBC, it is patentthat each category of members pertained to a single

individual only."41

Indeed, the spirit and reason of the statute may bepassed upon where a literal meaning would lead toabsurdity, contradiction, injustice, or defeat the clearpurpose of the lawmakers.42 Not any of these instances,however, is present in the case at bench. Consideringthat the language of the subject constitutional provision

is plain and unambiguous, there is no need to resortextrinsic aids such as records of the ConstitutionalCommission.

Nevertheless, even if the Court should proceed to lookinto the minds of the members of the ConstitutionalCommission, it is undeniable from the records thereofthat 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 theappointments of members of the Supreme Court andjudges of the lower courts. At present it is the Presidentwho appoints them. If there is a Commission onAppointments, then it is the President with the

confirmation of the Commission on Appointment. In thisproposal, we would like to establish a new office, a sort ofa board composed of seven members called the Judicialand Bar Council. And while the President will still appointthe member of the judiciary, he will be limited to therecommendees of this Council.


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x x x x x x x x xMR. RODRIGO. Ofthe seven members of the Judicial andBar Council, the President appoints four of them who areregular members.

x x x x x x x x xMR. CONCEPCION. The only purpose of the Committee isto eliminate partisan politics.43

x x x x x x x x xMR. RODRIGO. If my amendment is approved, then theprovision will be exactly the same as the provision in the1935 Constitution, Article VIII, Section 5.x x x x x x x x x

If we do not remove the proposed amendment on thecreation of the Judicial and Bar Council, this will be adiminution of the appointing power of the highestmagistrate of the land, of the

President of the Philippines elected by all the Filipinopeople. The appointing power will be limited by a groupof seven people who are not elected by the people but

only appointed.

Mr. Presiding Officer, if this Council is created, there willbe no uniformity in our constitutional provisions onappointments. The members of the Judiciary will besegregated from the rest of the government. Even amunicipal judge cannot be appointed by the Presidentexcept upon recommendation or nomination of the three

names by this Committee of seven people,commissioners of the Commission on Elections, the COAand the Commission on Civil Serviceeven ambassadors,generals of the Army will not come under this restriction.Why are we going to segregate the Judiciary from the rest


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of our government in the appointment of high-rankingofficials?

Another reason is that this Council will be ineffective. It

will just besmirch the honor of our President withoutbeing effective at all because this Council will be underthe influence of the President. Four out of seven areappointees of the President and they can be reappointedwhen their term ends. Therefore, they would be kowtowthe President. A fifth member is the Minister of Justice, analter ego of the President. Another member representsthe Legislature. In all probability, the controlling part in

the legislature belongs to the President and, therefore,this representative form the National Assembly is alsounder the influence of the President. And may I say, Mr.Presiding Officer, that event the Chief Justice of theSupreme Court is an appointee of the President. So it isfutile he will be influence anyway by thePresident.44 [Emphases supplied]

At this juncture, it is worthy to note that the seven-

member composition of the JBC serves a practicalpurpose, that is, to provide a solution should there be astalemate in voting. This underlying reason leads theCourt to conclude that a single vote may not be dividedinto half (1/2), between two representatives of Congress,or among any of the sitting members of the JBC for thatmatter. This unsanctioned practice can possibly causedisorder and eventually muddle the JBCs voting process,

especially in the event a tie is reached. The aforesaidpurpose would then be rendered illusory, defeating theprecise mechanism which the Constitution itself created.While it would be unreasonable to expect that theFramers provide for every possible scenario, it is sensible


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to presume that they knew that an odd composition is thebest means to break a voting deadlock.

The respondents insist that owing to the bicameral nature

of Congress, the word "Congress" in Section 8(1), ArticleVIII of the Constitution should be read as including boththe Senate and the House of Representatives. Theytheorize that it was so worded because at the time thesaid provision was being drafted, the Framers initiallyintended a unicameral form of Congress.

Then, when the Constitutional Commission eventuallyadopted a bicameral form of Congress, the Framers,through oversight, failed to amend Article VIII, Section 8of the Constitution.45 On this score, the Court cites theinsightful analysis of another member of the Court andJBC consultant, retired Justice Consuelo Ynares-Santiago.46 Thus:

A perusal of the records of the Constitutional Commissionreveals that the composition of the JBC reflects the

Commissions desire "to have in the Council arepresentation for the major elements of thecommunity."xxxThe ex-officiomembers of the Councilconsist of representatives from the three main branchesof government while the regular members are composedof various stakeholders in the judiciary. Theunmistakeable tenor of Article VIII, Section 8(1)was to treat each ex-officio member

as representing one co-equal branch ofgovernment.xxxThus, the JBC was designed tohave seven voting members with the three ex-officio members having equal say in the choice of judicialnominees.


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x x x x x x x x x

No parallelism can be drawn between therepresentative of Congress in the JBC and the

exercise by Congress of its legislative powersunder Article VI and constituent powers underArticle XVII of the Constitution. Congress, in relationto the executive and judicial branches of government, isconstitutionally treated as another co-equal branch of inthe matter of its representative in the JBC. On the otherhand, the exercise of legislative and constituent powersrequires the Senate and House of Representatives to

coordinate and act as distinct bodies in furtherance ofCongress role under our constitutional scheme. Whilethe latter justifies and, in fact, necessitates theseparateness of the two houses of Congress asthey relate inter se, no such dichotomy need bemade when Congress interacts with the other twoco-equal branches of government.

It is more in keeping with the co-equal nature of

the three governmental branches to assign thesame weight to considerations that any of itsrepresentatives may have regarding aspiringnominees to the judiciary. The representatives ofthe Senate and the House of Representatives actas such for one branch and should not have anymore quantitative influence as the other branchesin the exercise of prerogatives evenly bestowed

upon the three. Sound reason and principle of equalityamong the three branches support this conclusion.[Emphases and underscoring supplied]

More than the reasoning provided in the above discussedrules of constitutional construction, the Court finds the


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above thesis as the paramount justification of the Courtsconclusion that "Congress," in the context of JBCrepresentation, should be considered as one body. It isevident that the definition of "Congress" as a bicameral

body refers to its primary function in government - tolegislate.47 In the passage of laws, the Constitution isexplicit in the distinction of the role of each house in theprocess. The same holds true in Congress non-legislativepowers such as, inter alia, the power ofappropriation,48 the declaration of an existence of a stateof war,49 canvassing of electoral returns for the Presidentand Vice-President,50 and impeachment.51 In the exercise

of these powers, the Constitution employs preciselanguage in laying down the roles which a particularhouse plays, regardless of whether the two housesconsummate an official act by voting jointly or separately.An inter-play between the two houses is necessary in therealization of these powers causing a vivid dichotomythat the Court cannot simply discount. Verily, each houseis constitutionally granted with powers and functions

peculiar to its nature and with keen consideration to 1) itsrelationship with the other chamber; and 2) inconsonance with the principle of checks and balances, tothe other branches of government.

This, however, cannot be said in the case of JBCrepresentation because no liaison between the twohouses exists in the workings of the JBC. No mechanism isrequired between the Senate and the House ofRepresentatives in the screening and nomination ofjudicial officers. Hence, the term "Congress" must betaken to mean the entire legislative department. Afortiori,a pretext of oversight cannot prevail over the morepragmatic scheme which the Constitution laid with
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firmness, that is, that the JBC has a seat for a singlerepresentative of Congress, as one of the co-equalbranches of government.

Doubtless, the Framers of our Constitution intended tocreate a JBC as an innovative solution in response to thepublic clamor in favor of eliminating politics in theappointment of members of the Judiciary.52 To ensurejudicial independence, they adopted a holistic approachand hoped that, in creating a JBC, the private sector andthe three branches of government would have an activerole and equal voice in the selection of the members of

the Judiciary.

Therefore, to allow the Legislature to have morequantitative influence in the JBC by having more than onevoice speak, whether with one full vote or one-half (1/2) avote each, would, as one former congressman andmember of the JBC put it, "negate the principle ofequality among the three branches of government whichis enshrined in the Constitution."53

To quote one former Secretary of Justice:

The present imbalance in voting power between theLegislative and the other sectors represented in the JBCmust be corrected especially when considered vis--visthe avowed purpose for its creation, i.e., to insulate theappointments in the Judiciary against political influence.

By allowing both houses of Congress to have arepresentative in the JBC and by giving eachrepresentative one (1) vote in the Council, Congress, ascompared to the other members of the JBC, is accordedgreater and unwarranted influence in the appointment ofjudges.54 [Emphasis supplied]


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It is clear, therefore, that the Constitution mandates thatthe JBC be composed of seven (7) members only. Thus,any inclusion of another member, whether with onewhole vote or half (1/2) of it, goes against that mandate.

Section 8(1), Article VIII of the Constitution, providingCongress with an equal voice with other members of theJBC in recommending appointees to the Judiciary isexplicit. Any circumvention of the constitutional mandateshould not be countenanced for the Constitution is thesupreme law of the land. The Constitution is the basic andparamount law to which all other laws must conform andto which all persons, including the highest officials of the

land, must defer. Constitutional doctrines must remainsteadfast no matter what may be the tides of time. Itcannot be simply made to sway and accommodate thecall of situations and much more tailor itself to the whimsand caprices of the government and the people who runit.55 Hence, any act of the government or of a publicofficial or employee which is contrary to the Constitutionis illegal, null and void.

As to the effect of the Courts finding that the currentcomposition of the JBC is unconstitutional, it bearsmentioning that as a general rule, an unconstitutional actis not a law; it confers no rights; it imposes no duties; itaffords no protection; it creates no office; it is inoperativeas if it has not been passed at all.56 This rule, however, isnot absolute. In the interest of fair play under thedoctrine of operative facts, actions previous to thedeclaration 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 thegeneral rule, only applies as a matter of equity and fair


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play.1wphi1 It nullifies the effects of an unconstitutionallaw by recognizing that the existence of a statute prior toa determination of unconstitutionality is an operative factand may have consequences which cannot always be

ignored. The past cannot always be erased by a newjudicial declaration.

The doctrine is applicable when a declaration ofunconstitutionality will impose an undue burden on thosewho have relied on the invalid law. Thus, it was applied toa criminal case when a declaration of unconstitutionalitywould put the accused in double jeopardy or would put in

limbo the acts done by a municipality in reliance upon alaw creating it.

Considering the circumstances, the Court finds theexception applicable in this case and holds thatnotwithstanding its finding of unconstitutionality in thecurrent composition of the JBC, all its prior official actionsare nonetheless valid.

At this point, the Court takes the initiative to clarify that itis not in a position to determine as to who should remainas the sole representative of Congress in the JBC. This is amatter beyond the province of the Court and is best leftto 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 onsuch a construction at the risk of expanding the meaningof the Constitution as currently worded. Needless tostate, the remedy lies in the amendment of thisconstitutional provision. The courts merely give effect to


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the lawgiver's intent. The solemn power and duty of theCourt to interpret and apply the law does not include thepower to correct, by reading into the law what is notwritten therein.

WHEREFORE, the petition is GRANTED. The currentnumerical composition of the Judicial and Bar Council ISdeclared UNCONSTITUTIONAL. The Judicial and BarCouncil is hereby enjoined to reconstitute itself so thatonly one ( 1) member of Congress will sit as arepresentative in its proceedings, in accordance withSection 8( 1 ), Article

VIII of the 1987 Constitution.This disposition is immediately executory.

SO ORDERED.

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