By By Atty. Romulo P. Atencia
The Judicial and Bar Council
posted 22-Jul-2015  ·  
5,022 views  ·   0 comments  ·  

When I returned to writing this column after my close brush with death and long hospitalization last year, I made the assurance that as a 70-year old man who is grateful to have a new lease on life, I will happily continue sharing with my readers some of my random thoughts. Well, here is one of them, concerning the Judicial and Bar Council (JBC) and my good friend and fellow litigation lawyer, the late Atty. Francisco I. Chavez. We belonged to class 1971 of different law schools: Frank, as we fondly called him, graduated from the UP College of Law while I graduated from the Ateneo de Manila College of Law. We became friends when we worked together as litigation lawyers at the Sycip Salazar Feliciano Hernandez & Castillo, which then proudly claimed itself to be the biggest law firm not only in the Philippines but in the whole of Asia.

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Frank was a born fighter and as cantankerous as one can be – not afraid to lock horns with anybody. Many of the cases he filed enriched our jurisprudence and this is one of them, a case he filed stemming from the unexpected departure (a polite way of saying “impeachment”) of former Chief Justice Renato C. Corona on May 29, 2012.

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By way of backgrounder, it must be remembered that from the birth of the Philippine Republic, the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution and the 1935 Constitution vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body. Then, under the 1973 Constitution (which “legitimized” the Marcos dictatorship), with the fusion of the executive and legislative powers in one body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The power became exclusive and absolute to the Executive, subject only to the condition that the appointees must have all the qualifications and none of the disqualifications.

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Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities, the members of the Constitutional Commission saw it wise to create a separate, competent and independent body to recommend nominees to the President. Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called it the Judicial and Bar Council (JBC). The Framers arrived at a unique system by adding to the four (4) regular members, three (3) representatives from the major branches of government - the Chief Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice (representing the Executive Department), and a representative of the Congress (representing the Legislative Department). The total is seven (7). In so providing, the Framers simply gave recognition to the Legislature, not because it was in the interest of a certain constituency, but in reverence to it as a major branch of government. The Framers carefully worded Section 8, Article VIII of the 1987 Constitution in this wise: “Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”

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From the moment of the creation of the JBC, Congress designated one (1) representative to sit in the JBC to act as one of the ex-officio members. Pursuant to the constitutional provision that Congress is entitled to one (1) representative, each House sent a representative to the JBC, not together, but alternately or by rotation. In 1994, the seven-member composition of the JBC was substantially altered. An eighth member was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in the JBC, with each having one-half (1/2) of a vote. In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of Representatives one full vote each. It has been the situation since then.

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Until my good Francisco I. Chavez came along. He asked the Supreme Court to determine whether the first paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House of Congress with one (1) vote each is sanctioned by the Constitution. One of his arguments was that to allow Congress to have two representatives in the Council, with one vote each, is to negate the principle of equality among the three branches of government which is enshrined in the Constitution.

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On July 17, 2012, the Supreme Court declared the then numerical composition of the Judicial and Bar Council as unconstitutional, and enjoined the JBC to reconstitute itself so that only one (1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution. It rationalized that the creation of the JBC is intended to curtail the influence of politics in Congress in the appointment of judges, and the understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives Congress more influence in the appointment of judges. Also, two votes for Congress would increase the number of JBC members to eight, which could lead to voting deadlock by reason of even-numbered membership, and a clear violation of 7 enumerated members in the Constitution. The unmistakable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees.

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