- versus -
G.R. No. 202242
)( ----------------------------------------------------------------------------------- )(
The issue at hand has been in hibernation until the unexpected
departure of Chief Justice Renato C. Corona on May 29, 2012, and the
nomination of former Solicitor General Francisco I. Chavez (petitioner), as
• No Part - Inhibited for being a JBC applicant.
"Onleavc. Also no part- lnhibitcd for being a JBC applicant.
DECISION 2 G.R. No. 202242

his potential successor, triggered the filing of this case. The issue has
constantly been nagging legal minds, yet remained dormant for lack of
constitutional challenge.

As the matter is of extreme urgency considering the constitutional
deadline in the process of selecting the nominees for the vacant seat of the
Chief Justice, the Court cannot delay the resolution of the issue a day longer.
Relegating it in the meantime to the back burner is not an option.

Does the first paragraph of Section 8, Article VIII of the 1987
Constitution allow more than one (1) member of Congress 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 are
the pivotal questions to be resolved in this original action for prohibition and

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. 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.

Article 80 Title X of the Malolos Constitution provides: “The Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the National Assembly in concurrence with the President of the
Republic and the Secretaries of the Government, and shall be absolutely independent of the Legislative and
Executive Powers.”
Section 5 Article VIII of the 1935 Constitution provides: “The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the Commission on
1 Records of the Constitutional Commission Proceedings and Debates, 437.
DECISION 3 G.R. No. 202242

Then, with the fusion of executive and legislative power under the
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). Its
composition, term and functions are provided under Section 8, Article VIII
of the Constitution, viz:

Section 8. (1) A J udicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of the Chief
J ustice as ex officio Chairman, the Secretary of J ustice, 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

(2) The regular members of the Council shall be appointed by
the President for a term of four years with the consent of the
Commission on Appointments. Of the Members first appointed, the
representative of the Integrated Bar shall serve for four years, the
professor of law for three years, the retired J ustice for two years,
and the representative of the private sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretary ex
officio of the Council and shall keep a record of its proceedings.

(4) The regular Members of the Council shall receive such
emoluments as may be determined by the Supreme Court. The
Supreme Court shall provide in its annual budget the
appropriations for the Council.

(5) The Council shall have the principal function of
recommending appointees to the J udiciary. It may exercise such
other functions and duties as the Supreme Court may assign to it.

Section 4 Article X of the 1973 Constitution provides: “The Members of the Supreme Court and judges of
inferior courts shall be appointed by the President.”
1 Records, Constitutional Commission, Proceedings and Debates, p. 487.
DECISION 4 G.R. No. 202242

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) representative.

In 1994, the composition of the JBC was substantially altered. Instead
of having only seven (7) members, an eighth (8
) 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, Senator Francis Joseph G. Escudero and
Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC
as representatives of the legislature.

It is this practice that petitioner has questioned in this petition,
forth the following


Article VIII, Section 8, Paragraph 1 is clear, definite and
needs no interpretation in that the JBC shall have only one
representative from Congress.

List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and Consultants,
issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp. 62-63.
Comment of the JBC, p. 80, citing Minutes of the 1
En Banc Executive Meeting, January 12, 2000 and
Minutes of the 12
En Banc Meeting, May 30, 2001.
Rollo, pp. 3-69.
DECISION 5 G.R. No. 202242


The framers of the Constitution clearly envisioned,
contemplated and decided on a JBC composed of only seven
(7) members.


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.


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.


One of the two (2) members of the JBC from Congress
has no right (not even ½ right) to sit in the said constitutional
body and perform the duties and functions of a member thereof.


The JBC cannot conduct valid proceedings as its
composition is illegal and unconstitutional.

On July 9, 2012, 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.

Through the Office of the Solicitor General (OSG), respondents
defended their position as members of the JBC in their Comment
filed on

Id. at 17-18.
Id. at 76-106.
Id. at 80.
Id. at 117-163.
DECISION 6 G.R. No. 202242

July 12, 2012. According to them, the crux of the controversy is the phrase
“a representative of Congress.”
Reverting to the basics, they cite Section
1, Article VI of the Constitution
to determine the meaning of the term
“Congress.” 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.

Bicameralism, as the system of choice by the Framers, requires that both
houses exercise their respective powers in the performance of its mandated
duty which is to legislate. 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 Congress.

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

The ambiguity having resulted from a plain case of inadvertence, the
respondents urge the Court to look beyond the letter of the disputed

Id. at 142.
“The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative
and referendum.”
Rollo, p. 143.
Id. at 148.
DECISION 7 G.R. No. 202242

provision because the literal adherence to its language would produce
absurdity and incongruity to the bicameral nature of Congress.
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.

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.

The Issues

In resolving the procedural and substantive issues arising from the
petition, as well as the myriad of counter-arguments proffered by the
respondents, the Court synthesized them into two:

(1) Whether or not the conditions sine qua non for the
exercise of the power of judicial review have been met in this
case; and

Id. at 150-153.
DECISION 8 G.R. No. 202242

(2) 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.

The Power of Judicial Review

In its Comment, the JBC submits that petitioner is clothed with locus
standi to file the petition, as a citizen and taxpayer, who has been nominated
to the position of Chief Justice.

For the respondents, however, petitioner has no “real interest” in
questioning the constitutionality of the JBC’s current composition.
outlined in jurisprudence, it is well-settled that for locus standi to lie,
petitioner must exhibit 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 his recommendation to the position of Chief
Justice, thereby divesting him of a substantial interest in the controversy.
Without his name in the official list of applicants for the post, the
respondents claim that there is no personal stake on the part of petitioner that
would justify his outcry of unconstitutionality. Moreover, the mere
allegation 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 requisites therefor. The respondents also question petitioner’s belated
filing of the petition.
Being aware that the current composition of the JBC
has been in practice since 1994, petitioner’s silence for eighteen (18) years
show that the constitutional issue being raised before the Court does not
comply with the “earliest possible opportunity” requirement.

Id. at 78.
Id. at 131.
Id. at 131-133.
DECISION 9 G.R. No. 202242

Before addressing the above issues in seriatim, the Court deems it
proper to first ascertain the nature of the petition. Pursuant to the rule that
the nature of an action is determined by the allegations therein and the
character of the relief sought, the Court views the petition as essentially an
action for declaratory relief under Rule 63 of the 1997 Rules of Civil

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.

Section 1. Who may file petition.—Any person interested under a deed, will, contract or other written
instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration of
his rights or duties, thereunder.
x x x
1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts.
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such
temporary assignment shall not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to
the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.
DECISION 10 G.R. No. 202242

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

Anent locus standi, the question to be answered is this: does the party
possess a personal stake in the outcome of the controversy as to assure that
there is real, concrete and legal conflict of rights and duties from the issues
presented before the Court? In David v. Macapagal-Arroyo,
the Court
summarized the rules on locus standi as culled from jurisprudence. There, it
was held that taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:
(1) cases involve constitutional issues; (2) for taxpayers, there must be a
claim of illegal disbursement of public funds or that the tax measure is
unconstitutional; (3) for voters, there must be a showing of obvious interest
in the validity of the election law in question; (4) for concerned citizens,

Senate of the Philippines v. Ermita, 522 Phil. 1, 27 (2006).
522 Phil. 705 (2006).
DECISION 11 G.R. No. 202242

there must be a showing that the issues raised are of transcendental
importance which must be settled early; and (5) for legislators, there must be
a claim that the official action complained of infringes upon their
prerogatives as legislators.

In public suits, the plaintiff, representing the general public, asserts a
“public right” in assailing an allegedly illegal official action. The plaintiff
may be a person who is affected no differently from any other person, and
can be suing as a “stranger,” or as a “citizen” or “taxpayer.” Thus, taxpayers
have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an
invalid or unconstitutional law. Of greater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute.

In this case, petitioner seeks judicial intervention as a taxpayer, a
concerned citizen and a nominee to the position of Chief Justice of the
Supreme Court. As a taxpayer, petitioner invokes his right to demand that
the taxes he and the rest of the citizenry have been paying to the government
are spent for lawful purposes. According to petitioner, “since the JBC
derives financial support for its functions, operation and proceedings from
taxes paid, petitioner possesses as taxpayer both right and legal standing to
demand that the JBC’s proceedings are not tainted with illegality and that its
composition and actions do not violate the Constitution.”

Notably, petitioner takes pains in enumerating past actions that he had
brought before the Court where his legal standing was sustained. Although
this inventory is unnecessary to establish locus standi because obviously, not
every case before the Court exhibits similar issues and facts, the Court

LAMP v. The Secretary of Budget and Management, G.R. No. 164987, April 24, 2012.
Rollo, p. 6.
DECISION 12 G.R. No. 202242

recognizes the petitioner’s right to sue in this case. Clearly, 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. Albeit heavily publicized in this
regard, the JBC’s duty is not at all limited to the nominations for the highest
magistrate in the land. A vast number of aspirants to judicial posts all over
the country may be affected by the Court’s ruling. More importantly, the
legality of the very process of nominations to the positions in the Judiciary is
the nucleus of the controversy. 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
DECISION 13 G.R. No. 202242

questions being raised.
The allegations of constitutional violations in this
case are not empty attacks on the wisdom of the other branches of the
government. The allegations are substantiated by facts and, therefore,
deserve an evaluation from the Court. The Court need not elaborate on the
legal and societal ramifications of the issues raised. It cannot be gainsaid
that the JBC is a constitutional innovation crucial in the selection of the
magistrates in our judicial system.

The Composition of the JBC

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 J udicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of the Chief
J ustice as ex officio Chairman, the Secretary of J ustice, 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

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003), citing Kilosbayan v. Guingona,
G.R. No. 113375, May 5, 1994, 232 SCRA 110, 155-157.
DECISION 14 G.R. No. 202242

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.
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.
Verba legis
non est recedendum – from the words of a statute there should be no

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;
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.

National Food Authority (NFA) v. Masada Security Agency, Inc., 493 Phil. 241, 250 (2005); Philippine
National Bank v. Garcia, Jr., 437 Phil. 289 (2002).
Francisco, Jr. v. House of Representatives, supra note 31 at 885, citing J.M. Tuason & Co., Inc. v. Land
Tenure Administration, L-21064, February 18, 1970, 31 SCRA 413.
DECISION 15 G.R. No. 202242

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
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.
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.
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
“from the enumeration of the membership of the JBC, it is
patent that each category of members pertained to a single individual

Coca-Cola Bottlers, Phils., Inc. (CCBPI), Naga Plant v. Gomez, G.R. No. 154491, November 14, 2008,
571 SCRA 18, 37; People v. Delantar, G.R. No. 169143, February 2, 2007, 514 SCRA 115, 139; and
Republic v. Sandiganbayan, 255 Phil. 71 (1989), citing Co Kim Chan v. Valdez Tan Keh and Dizon, 75 Phil.
371 (1945).
People v. Delantar, G.R. No. 169143, February 2, 2007, 514 SCRA 115, 139; Republic v. Sandiganbayan,
255 Phil. 71 (1989), citing Co Kim Chan v. Valdez, 75 Phil. 371 (1945).
Uy v. Sandiganbayan, 407 Phil. 154, 180 (2001).
Memorandum of Associate Justice Leonardo A. Quisimbing, dated March 14, 2007; rollo, p. 95-103.
Id. at 103.
DECISION 16 G.R. No. 202242

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.
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 J udicial 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

xxx xxx xxx

MR. CONCEPCION. The only purpose of the Committee is to
eliminate partisan politics.

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.

Ursua v. Court of Appeals, 326 Phil. 157, 163 (1996).
1 Records of the Constitutional Commission Proceedings and Debates, p. 445.
DECISION 17 G.R. No. 202242

xxx xxx xxx

If we do not remove the proposed amendment on the creation
of the J udicial 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 J udiciary 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 J udiciary 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 J ustice, 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 J ustice of the Supreme
Court is an appointee of the President. So it is futile he will be
influence anyway by the President.
[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

1 Records of the Constitutional Commission Proceedings and Debates, pp.486-487.
DECISION 18 G.R. No. 202242

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.
On this score, the Court cites the
insightful analysis of another member of the Court and JBC consultant,
retired Justice Consuelo Ynares-Santiago.

A perusal of the records of the Constitutional Commission
reveals that the composition of the J BC 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 J BC 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 co-
equal branch of in the matter of its representative in the J BC. 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.

Comment of Respondents, rollo, pp. 142-146.
Comment of JBC; id. at 91-93.
DECISION 19 G.R. No. 202242

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.
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,
the declaration of an existence of a state of war,

canvassing of electoral returns for the President and Vice-President,

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.
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.
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
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.
DECISION 20 G.R. No. 202242

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.
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.

1987 Constitution, Article 11 Section 3 (1) - The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that
purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the
Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.
1 Records of the Constitutional Commission Proceedings and Debates Records of the Constitutional
Convention, p. 487.
DECISION 21 G.R. No. 202242

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.”

To quote one former Secretary of Justice:

The present imbalance in voting power between the Legislative
and the other sectors represented in the J BC must be corrected
especially when considered vis-à-vis the avowed purpose for its
creation, i.e., to insulate the appointments in the J udiciary 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
[Emphasis supplied]

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.
Hence, any act of the government or of a public official
or employee which is contrary to the Constitution is illegal, null and void.

Comment of the JBC, rollo, p. 104.
Memorandum of Justice Secretary Agnes VST Devanadera, Comment of the JBC, id. at 105-106.
Louis "Barok" C. Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7,
2010, 637 SCRA 78, 137-138, citing Cruz, Philippine Political law, 2002 ed. p. 12.
DECISION 22 G.R. No. 202242

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. They are not
nullified. In Planters Products, Inc. v. Fertiphil Corporation,
the Court

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

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.

Claudio S. Yap v. Thennamaris Ship's Management and Intermare Maritime Agencies Inc., G.R. No.
179532, May 30, 2011, 649 SCRA 369, 380.
G.R. No. 166006, March 14, 2008, 548 SCRA 485, 516-517.
DECISION 23 GR. No. 202242
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.
WHEREFOilE, 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.
This disposition is immediately executory.


Associate Justice
(No Part)
(On Leave)
Associate Justice
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Associate .Justice
Associate J
24 GR. No. 202242
Senior Associate Justice

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Associate Justice
It;;,_,!- fi aid

Associate Justice
Ju; 0(_ /vd-n--:_fU. CJ.

(No part)
Associate Justice
DECISION 25 GR. No. 202242
I certify that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the opinion of
the Court.
Senior Associate Justice
(Per Section 12, R.A. No. 296,
The Judiciary Act of 1948, as amended)