Should there be 2 lawmakers in the JBC?


In Umali v. JBC, the Supreme Court was once again tasked to re-examine our interpretation of Article VIII, Section 8(1) of the Constitution, previously the subject of this Court's review in Chavez v. Judicial and Bar Council. In the aftermath of Chavez, we see the absurd and unworkable effects of having only one (1) representative of Congress within the Judicial and Bar Council.

LEONEN'S VOTE: Accordingly, I vote to GRANT the Petition. The doctrine in Chavez v. Judicial and Bar Council must be ABANDONED.

According to Justice Leonen, Chavez v. Judicial and Bar Council sanctioned what was clearly unintended by the Constitution: the periodic disempowerment of one (1) legislative chamber. In doing so, it weakens Congress itself as a bicameral constitutional department. The subtraction of the critical one (1) vote that determines who gets into the shortlist is achieved by periodically disempowering one (1) chamber. From the time Chavez was promulgated, significant facts have come to light that justifies the abandonment of that precedent.

This is a Petition for mandamus and certiorari filed by Representative Reynaldo V. Umali (Representative Umali), current Chair of the House of Representatives Committee on Justice, questioning the six (6)-month rotational representation arrangement of Congress adopted by the Judicial and Bar Council pursuant to Chavez v. Judicial and Bar Council, which was decided with finality on April 16, 2013. Petitioner claims that the current arrangement unfairly deprives both chambers of Congress of its full participation in the Judicial and Bar Council.

An understanding of the process of appointment to the judiciary, especially in its historical context, is important to situate this Court's proper interpretation of the current provisions of the Constitution.

Before the creation of the Judicial and Bar Council, the power to nominate and appoint members of the judiciary was vested in the executive and legislative branches, under Title X, Article 80 of the Malolos Constitution.

Hoping to unshackle the Republic from the abuses of power during Martial Law but at the same time wanting to insulate the process of judicial appointments from partisan politics, the 1986 Constitutional Commission, through Commissioner Roberto Concepcion, proposed the creation of an independent body that would vet potential appointees to the judiciary. This body would be represented by the different stakeholders of the legal sector and would have the mandate of preparing the list of potential judicial appointees to be submitted to the President. The proposal became what is now the Judicial and Bar Council. Article VIII, Section 8 of the Constitution now provides:
ARTICLE VIII
Judicial Department

xxx

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

(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 Justice 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 Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
Based on their understanding of the provision stating that one (1) of its ex officio members would be "a representative of Congress," both the House of Representatives and Senate sent representatives to the Council. Representative Rogaciano A. Mercado sat as ex officio member from December 10, 1987 to February 23, 1989 while Senator Wigberto E. Tañada sat as ex officio member from March 2, 1988 to May 21, 1990. In a previous case, however, this Court stated that membership in the Council would be altered only in 1994, stating that before then, the House of Representatives and the Senate would alternate its representation.

The practice of giving each member of Congress one (1) full vote was questioned in 2012 in Chavez v. Judicial and Bar Council. This Court, voting 7-2, stated that the Constitution intended for the Judicial and Bar Council to only have seven (7) members; thus, only one (1) representative from Congress must sit as an ex officio member.

The present controversy arose from the En Banc deliberations of the Judicial and Bar Council on December 2 and December 9, 2016, for the selection of nominees for the vacancies of retiring Supreme Court Associate Justices Arturo D. Brion and Jose P. Perez. On both occasions, Representative Umali cast his votes. His votes, however, were not counted due to the present rotational representation arrangement. The votes were instead placed in an envelope and sealed, "subject to any further disposition as the Supreme Court may direct in a proper proceeding."

It is the opinion of Justice Leonen that the doctrine of Chavez v. Judicial and Bar Council must be abandoned and revised.

Under the Constitution, Congress is bicameral in nature. It consists of two (2) chambers: the Senate and the House of Representatives. Article VI, Section 1 provides:
ARTICLE VI
The Legislative Department

Section 1. 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.
The Constitution considers both chambers as separate and distinct from each other. The manner of elections, terms of office, and organization of each chamber is provided for under separate provisions of the Constitution.

Senators are "elected at large by the qualified voters of the Philippines." Members of the House of Representatives are elected by their respective legislative districts or through the party-list system. The differing nature of its elections affects the scope of its representation. Senators represent a national constituency while the House of Representatives represents only a particular legislative district or marginalized and underrepresented sector.

Each chamber chooses its own officers. Each chamber promulgates its own rules of procedure. Each chamber maintains separate Journals. Each chamber keeps separate Records of its proceedings. Each chamber disciplines its own members. Each chamber even maintains separate addresses. There is no mechanism that would allow the two (2) chambers to represent the other:
There is no presiding officer for the Congress of the Philippines, but there is a Senate President and a Speaker of the House of Representatives. There is no single journal for the Congress of the Philippines, but there is a journal for the Senate and a journal for the House of Representatives. There is no record of proceedings for the entire Congress of the Philippines, but there is a Record of proceedings for the Senate and a Record of proceedings for the House of Representatives. The Congress of the Philippines does not discipline its members. It is the Senate that promulgates its own rules and disciplines its members. Likewise, it is the House that promulgates its own rules and disciplines its members.

No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the Senate. By constitutional design, he or she cannot get instructions from the House of Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she must be open to amend or modify the instructions given to him or her by the Senate if the House of Representatives' instructions are different. Yet, the Constitution vests disciplinary power only on the Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House of Representatives may carry instructions from the Senate. Neither Senator nor Member of the House of Representatives may therefore represent Congress as a whole.
Thus, there is no Member of Congress that can represent all of Congress. Congress is represented by both the Senate and the House of Representatives. The Constitution itself provides for only one (1) instance when both chambers must vote jointly under Section 18 of Article VII.In Chavez v. Judicial and Bar Council, the Supreme Court, however, ruled that Congress is only entitled to one (1) seat in the Judicial and Bar Council, pursuant to its interpretation of Article VIII, Section 8(1) of the Constitution.

verba legis interpretation of Article VIII, Section 8(1) of the Constitution leads to an ambiguity and disregards the bicameral nature of CongressChavez presumes that one (1) member of Congress can vote on behalf of the entire Congress.

It is a basic rule of statutory construction that constitutional provisions must be harmonized so that all words are operative. This is the teaching in Civil Liberties Union v. Executive Secretary.

Civil Liberties Union also instructs us that constitutional interpretation should depend on the understanding of the people adopting it, rather than how the framers interpreted it.

Resort to the records of the Constitutional Commission to discern the framers' intent must always be with the understanding of its context and its contemporary consequences. Records show that Article VIII, Section 8(1) was approved by the Constitutional Commission on July 19, 1986. On July 21, 1986, the Commission voted to amend the proposal of a unicameral "National Assembly" to a bicameral "Congress."

The change of legislative structure led Commissioner Christian Monsod on July 30, 1986 to remark:
Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of this group is, that all the provisions that were being drafted up to that time assumed a unicameral government.
On October 8, 1986, the Article on the Judiciary was reopened to introduce amendments to the proposed Sections 3, 7, 10, 11, 13, and 14 only. The entire Article on the Legislature, meanwhile, was approved on October 9, 1986. By October 15, 1986, the Constitution was presented to the President of the Constitutional Commission, Cecilia Muñoz Palma.

The chronology of events shows that the provision on the composition of the Judicial and Bar Council had been passed at a time when the framers were still of the belief that there was to be a unicameral legislature. Thus, Section 8(1) provides for only "a representative" instead of "representatives."

From the promulgation of the Constitution, Congress already recognized that "a representative of Congress" can only mean one (1) representative from each chamber. This interpretation was so prevalent that from 2001, each member from the Senate and the House of Representatives was given one (1) full vote. This is the representation of Congress contemplated in the Constitution.

The current practice of alternate representation not only diminishes Congress' representation. It negates it.

When a Senator sits in the Council, he or she can only represent the Senate. Likewise, when a Member of the House of Representatives sits in the Council, he or she can only represent the House of Representatives. Congress is not represented at all in this kind of arrangement.

The composition of the Judicial and Bar Council is representative of the constituencies and sectors affected by judicial appointments. Hence, practicing lawyers, prosecutors, the legal academe, members of the Bench, and the private sector are represented in the Council.

Members of Congress are the only officials within the Judicial and Bar Council that are elected. The rest of the officials are appointed by the President. Thus, their membership within the Council is the only genuine representation of the People. Their input in the possible candidates to the judiciary is as invaluable as that of a member of the legal academe or that of the private sector.

The antecedents of this case only serve to highlight the absurd results wrought by Chavez. In 2013, then Representative Tupas approached the Judicial and Bar Council to personally inform it of the agreed representation between the Senate and the House of Representatives. When told by Chief Justice Sereno that she had already received a letter from then Senate President Drilon informing the Council of the agreed representation, Representative Tupas replied that he was not aware of the letter.

There is no office or officer in Congress that can represent both chambers. Representative Tupas recognized this difficulty and cautioned the Council that it should never presume that one (1) chamber can speak for the entire Congress. He proved this point when he told the Council that he was unaware of any letter sent by the Senate President.

Chavez forces one (1) chamber of Congress to arrogate upon itself all the powers, prerogatives, and privileges of the entire Congress in the Judicial and Bar Council. This is contrary to its bicameral nature.

When members of Congress sit in the Judicial and Bar Council, it may be with the instruction of their respective chambers, as Representative Tupas demonstrated in the July 23, 2013 En Banc Meeting. Their votes may likewise be constrained by resolutions and actions of the Congressional Committees they represent. They do not just represent themselves. They are "representatives of Congress" "ex officio."

Chavez deprives Congress its opportunity to fully represent its constituencies, whether at the national or at the local level. The purported reasons for having only one (1) representative of Congress to the Council are illusory.

Chavez stated that Congress should be represented in the Council by only one (1) member "not because it was in the interest of a certain constituency, but in reverence to it as a major branch of government."

Within the Council, the Executive is represented by the Secretary of Justice, considered as the alter ego of the President. The Judiciary is represented by the Chief Justice. Congress, however, operates through a Senate and a House of Representatives. Two (2) separate and distinct chambers cannot be represented by a single individual.

Chavez also implied that the framers intended for the Council's membership to be seven (7), not eight (8).

Article VIII, Section 8(1), however, does not provide a numerical count for its membership unlike in other the provisions of the Constitution. Increasing the Council's membership to eight (8) would not violate the provisions of the Constitution.

Chavez also insisted that the Council should have an odd-number representation so that one (1) member could function as a tie-breaker.

Judicial nominees, however, are not decided by a "yes" or "no" vote. The Council submits to the President a list of at least three (3) potential nominees who garnered a plurality of the votes. Some nominees may even have the same number of votes, and the Council will still include all of those names in the shortlist.

As demonstrated, no tie-breaker was needed in the preparation of the shortlist. Insisting that the composition of the Council should be an odd number is unnecessary. The Council will still be able to discharge its functions regardless of whether it is composed of seven (7) or eight (8) members.

THIS IS THE DISSENTING OPINION OF LEONEN, J. IN [G.R. No. 228628, July 25, 2017]. UMALI VS. JBC. The discussion has been shorted or summarized for the benefit of students of law.

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