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Philippine Supreme Court Holding Clarifies Constitutional Ambiguity

JURIST Guest Columnist Ira Paulo Pozon of the Office of the Vice President of the Philippines and JURIST Columnist Edsel Tupaz of Tupaz & Associates say that the Philippine Supreme Court's decision in Chavez vs. JBC, Escudero and Tupas has comprehensively answered a pertinent constitutional question...

In our previous JURIST article, we discussed the constitutional issues involving the composition of the Judicial and Bar Council (JBC), the body created and empowered by the Philippine Constitution to recommend nominees to the president to fill judicial vacancies. Specifically, we discussed the constitutionality of congressional membership on the JBC.

The Malolos Constitution and the 1935 Constitution both gave the Philippine president the power to appoint members to the judiciary, subject to the consent of the Commission on Appointments. Article 80, Title X of the Malolos Constitution provides that "[t]he 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[.]" In similar fashion, Section 5, Article VIII of the 1935 Constitution provides that "[t]he Members of the Supreme Court and all judges of inferior courts shall be appointed by the President with the consent of the Commission on Appointments."

The parliamentary system adopted under the 1973 Constitution effectively amalgamated the executive and legislative powers to one person — the president — including the power of judicial appointment. Section 4, Article X of the 1973 Constitution provides that "[t]he Members of the Supreme Court and judges of inferior courts shall be appointed by the President."

Recognizing what seemed to have been excessive discretionary powers in judicial appointments and the resulting political and partisan influence on appointees to the judiciary, the members of the Constitutional Commission, which framed the current constitution, mandated the creation of the JBC as it stands today. Section 8, paragraph 1, Article VIII of the constitution provides:

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.
The issue we discussed in our previous article is the membership of Senator Francis Escudero and House Representative Niel Tupas, Jr., respective chairpersons of the Senate and House of Representatives Committees on Justice. The constitution mandates that "a representative of the Congress" shall be among the ex-officio members of the JBC. Basic statutory construction would prompt a conclusion that there should be a single representative from the Congress, if one were to interpret "Congress" as a bicameral but collegial body composed of upper and lower Houses, which accurately describes the Philippine legislative system.

On July 17, 2012, a petition filed by former solicitor general and chief justice nominee Francisco Chavez was ruled upon by the Philippine Supreme Court. In Chavez v. JBC, Escudero and Tupas, the court's discussion of the JBC and its members from Congress, addresses Section 1, Article VI of the constitution:

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.
Under Section 1, Article VI, the term "Congress" refers to the Senate and the House of Representatives as permanent and mandatory components of the Philippine Congress. The JBC argues that the absence of either chamber divests the term "Congress" of its substantive meaning under the Constitution. In sum, the argument states that there can be no House of Representatives without the Senate, and, likewise, there can be no Senate without a House of Representatives.

The original intent and the subsequent result of the constitutional deliberations were discussed by both the JBC and Chavez in their respective arguments. The JBC argued that the framers of the Constitution originally envisioned a unicameral legislature, meaning that the phrase in dispute, "a representative from Congress" would have been appropriate. However, given the shift to bicameralism during the creation of the current constitution, the JBC contended that the phrase affecting congressional membership in the JBC was not modified accordingly.

Conversely, Chavez argued that the framers of the constitution committed no oversight, but that the phrase "a representative from Congress" was in-line with the decision to adopt a bicameral legislature — while there is a Senate and a House of Representatives, only one of them may send a representative to the JBC. This was the argument adopted by the Supreme Court in ruling against the JBC:

As [Chavez] 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.
The Supreme Court resorted to basic principles of statutory construction, citing the Latin maxim verba legis non est recedendum, or "from the words of a statute there should be no departure." The court also cited noscitur a sociis, which states that 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 associated.

In our application of noscitur a sociis, we note that the constitutional provision in Chavez provides for "the Chief Justice," "the Secretary of Justice," "a representative of the Integrated Bar," "a professor of law," "a retired Member of the Supreme Court," and "a representative of the private sector," along with "a representative of the Congress." Our assessment of that embattled phrase in association with the defining phrases of the other members, would indicate that the Constitution intended that each member is defined as the singular representative of their respective sectors.

The court also noted that the word "Congress" is used in its generic sense, with no allusion or reference to the Senate or the House of Representatives taken in the particular, and thus the Court made a justification that only a singular representative of the Congress may sit in the JBC. The Court took cognizance of a March 14, 2007, memorandum of former associate justice Leonardo Quisumbing, which stated that "from the enumeration of the membership of the JBC, it is patent that each category of members pertained to a single individual only."

The Supreme Court examined the "spirit of the law" in their ruling and cited the 1986 constitutional deliberations to demonstrate that the intent of the framers indeed pointed to a JBC composed of only seven members, with Congress having only one representative. The court also took occasion to state the practicality of having a seven-member composition of the JBC, specifically in resolving tie votes. At this juncture, the court referred to the analysis of retired justice Consuelo Ynares-Santiago:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commission's desire "to have in the Council a representation for the major elements of the community" ... 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 ... 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.

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 coequal branch of in the matter of its representative in the JBC. 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.

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.

Considering all the foregoing, the Supreme Court ruled that the current composition of the JBC, where both Tupas and Escudero sit as members, is unconstitutional. The court ordered the JBC to reconstitute itself in accordance with the constitutional mandate that only one member of Congress shall sit as representative.

This ruling, as expected, angered the affected members, with Representative Tupas quoted as saying: "We do not agree definitely with the decision of the Supreme Court, to me it's an absurd decision." Both the Senate and the House of Representatives asserted their intention to file a motion for reconsideration on the ruling.

We opine that this decision was exceptionally well-crafted and left little, if any room for further argument on the matter. Such clarity and finality should render the issue closed, and brings much needed trust and confidence in the membership and constitutionality of the JBC.

Ira Paulo Pozon is Head of the Vice Presidential Special Concerns Unit of the Vice President of the Philippines. He also serves as Legal Counsel and International Relations Officer to the Vice President. He acquired his MBA from the De La Salle University and his Juris Doctor from the Far Eastern University. His interests lie in corporate law, banking, trade and investment law, and international relations. He currently teaches at the College of Law of the University of the City of Manila.

Edsel Tupaz was a private prosecutor of the House prosecution panel in the recently concluded impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.

Suggested citation: Ira Paulo Pozon & Edsel Tupaz, Philippine Supreme Court Holding Clarifies Constitutional Ambiguity, JURIST - Sidebar, July 30, 2012, http://jurist.org/sidebar/2012/07/pozon-tupaz-judicial-selection.php .

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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