Dissension in the Court: April 2013

The 1987 Constitution allows only one (1) member of a bicameral Congress to sit in the Judicial and Bar Council (JBC). This, according to the Supreme Court in a majority decision penned by J. Mendoza and promulgated last April 16, 2013, was the intention of the framers of the Constitution who conceived of the JBC as an independent body representative of all the stakeholders in the judicial appointment process to recommend nominees to the President in order to rid such process of partisan political activities, and 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, retired Member of the Supreme Court, and a representative of the private sector.

The majority cannot accede to the argument of respondents that allowing only one representative from Congress in the JBC would lead to absurdity considering its bicameral nature, and that the failure of the framers to make the proper textual adjustment where there was a shift from unilateralism to bicameralism was a plain oversight. According to the majority, every language in the Constitution must be taken to have been deliberately chosen and that 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.  There could not have been any plain oversight in the wordings of the provision since the other provisions of the 1987 Constitution were amended accordingly with the shift to a bicameral legislative body (e.g., Sections 4, 8 and 18 of Article VII where corresponding adjustments were made as to how a matter would be handled and voted upon by the two Houses of Congress), and this Court has no power to add another member by judicial construction.

According to the majority, it is clear that the framers were not keen on adjusting the provision on congressional representation in the JBC because (i) it was not in the exercise of its primary function to legislate, considering that the JBC was created to support the executive power to appoint and Congress, as one whole body, was merely assigned a contributory non-legislative function, and (ii) there was no need to recognize the dichotomy of each House and to consider the interplay between the two Houses in their participation in the JBC because there is no interaction required between these two Houses in the screening and nomination of judicial officers.  Thus, in providing for the membership of the JBC, 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.  And the argument that a senator cannot represent a member of the House of Representatives in the JBC and vice versa is misplaced because any member of Congress is constitutionally empowered to represent the entire Congress.

The majority went on to cite various authorities who, having perused the records of the Constitutional Commission, are of the view that “to allow Congress to have two representatives with one vote each is to negate the principle of equality among the three branches of government,” “the interpretation of two votes for Congress would give Congress more influence in the appointment of judges and would also increase the number of JBC members to eight, which could lead to a voting deadlock and is a clear violation of the seven enumerated members in the Constitution,” and “no parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative and constituent powers under the Constitution – while the latter justifies the separateness of the two Houses as they relate inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government.”

In his dissenting opinion, J. Abad, joined by J. del Castillo, voted to grant respondents’ motion for reconsideration on the basis that the framers of the 1987 Constitution did not intend to limit representation of a bicameral Congress to only one member since the two Houses are still separate and distinct from each other and that neither House can by itself claim to represent the Congress.  While Section 8(1), Article VIII provides for just “a representative of the Congress,” it also provides that such representation is “ex officio” or “by virtue of one’s office” and there are actually two persons in Congress – the Chairperson of the Senate Justice Committee and the Chairperson of the House of Representatives Justice Committee – who hold separate offices with the attached function of sitting in the JBC.  Adhering to the majority’s literal translation of Section 8(1) would mean no representative from Congress will qualify as “ex officio” member of the JBC and would deny Congress the representation the framers intended it to have.  According to this dissenter, Fr. Joaquin Bernas, a member of the Constitutional Commission, himself admitted that the committee charged with making adjustments in the previously passed provisions covering the JBC, failed to consider the impact of a changed character of the Legislature on the inclusion of “a representative of the Congress” in the membership of the JBC.

In his separate dissenting opinion, J. Leonen agrees with J. Abad that limiting our interpretation only from the preposition “a” undermines the concept of a bicameral congress implied in all other 114 places in the Constitution that uses the word “Congress.”  On the other hand, there is no compelling reason why we should blind ourselves to the meaning of “representative of Congress” and “ex officio” and to limit representation of a bicameral Congress to only one.

First, the provision did not provide for a number of members to the JBC, unlike the provisions creating many other bodies in the Constitution, and there does not have to be an odd number of members in the JBC since the decision made there is not a dichotomous one, i.e., a yes or a no, where a tie-breaker will be necessary, but rather one where the shortlisted nominees are decided by a plurality of votes.  Second, Congress discharges its function to check and balance the power of both the Judiciary and the Executive in the JBC; thus, its representative has to consult with Congress as a whole.  Since neither a Senator or a Member of the House of Representatives may represent Congress as a whole, and since Congress does not exist separate from the Senate and the House of Representatives, each chamber must be represented in the JBC and must be able to instruct their respective representatives who do not sit there just to represent themselves – again, they are “representatives of Congress” “ex officio.” Third, the belief that one co-equal branch should be represented by only one representative, while true for the Executive who has a political alter ego in the Secretary of Justice and may be represented by that single individual, cannot apply to Congress which may not be represented by only one individual since it operates through the Senate and the House of Representatives. Lastly, it is apparent from the chronology of events relating to the deliberations of the Constitutional Commission that the discussions perused by the authorities cited in the main ponencia took place when the commissioners were still contemplating a unicameral legislature and therefore any mention of the composition of the JBC having seven members during the dates cited was within the context that the Commission had not yet voted and agreed upon a bicameral legislature. It is apparent that the Constitutional Commission was not able to amend the provisions concerning the JBC after it had decided to propose a bicameral Congress.

This dissenter believes that discerning that there should be a Senator and a Member of the House of Representatives sitting in the JBC so that Congress can be fully represented ex officio is not judicial activism, but is rather in keeping with the constitutional project of a bicameral Congress that is effective wherever it is represented and in tune with how our people understand Congress as described in the Constitution beyond a single isolated text.  Thus, nothing less than having two representatives from Congress with one full vote each would carry out this understanding since previous mechanisms used to carry out the consequence of the majority’s opinion – such as allowing two representatives but with half a vote each or alternating the seat between a Senator and a Member of the House of Representatives – are constitutionally abominable since in the former, either chamber of Congress is deemed only worth fifty percent of the wisdom of each other JBC member, while in the latter, alternating the seat would mean not giving a seat to the Congress at all since neither the Senator nor Member of the House of Representatives can represent Congress as a whole.

Francisco I. Chavez vs Judicial and Bar Council, Sen. Francis Joseph G. Escudero and Rep. Niel C. Tupas, Jr. (G.R. No. 202242); dissenting opinion: Abad, J., Leonen, J.