Article VIII Section 8 (1) of the Philippine Constitution created the Judicial and Bar Council, and its functions are found in Section 8 (5):
“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. x-x-x 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.”
The “principal function” of the JBC is that of “recommending appointees to the Judiciary” to the President. By its nature, the process of determining who to recommend requires a deep and intimate review of each candidate’s qualifications, which culminates in the decision of who to recommend to the appointing authority. In other words, the process by which the members of the JBC choose who to recommend – by voting for this purpose – is merely the culmination of their duty to first screen the applicants, and then separate the grain from the chaff.
The Supreme Court, in its April 16, 2013 Resolution in Chavez v. JBC affirmed its July 17, 2012 Decision that the JBC has, under the Constitution, only one Member from “Congress”, i.e. from both the Senate and the House of Representatives, and not one Member from each House. It struck down the practice (since 2001) of each House having one Member each in the JBC, each with a full vote, and the previous practice (since 1994) of each House having one Member each in the JBC, each with a 1/2 vote:
“The argument that a senator cannot represent a member of the House of Representatives in the JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the Senate or the House of Representatives, is constitutionally empowered to represent the entire Congress. It may be a constricted constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to one full vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2), between two Representatives of Congress. Not only can this unsanctioned practice cause disorder in the voting process, it is clearly against the essence of what the Constitution authorized. After all, basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly. To permit or tolerate the splitting of one vote into two or more is clearly a constitutional circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned one member of Congress sitting in the JBC, it is sensible to presume that this representation carries with him one full vote.” (emphasis supplied)
In its Resolution in Chavez v. JBC (supra), the Supreme Court noted the previous practice in the JBC that:
“… from the moment of its creation, 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.”
Perhaps taking a cue from the foregoing, now comes news that both houses of Congress have “finally settled the issue on its membership” in the JBC: the representative from the Senate and the House will “alternate… for a six-month rotation”, and in case one is unable to attend a JBC meeting during his period, the other shall “be automatically authorized to sit and vice-versa”.
Now why is there a representative from Congress in the JBC? In its Resolution in Chavez v. JBC (supra), the Supreme Court said that this is so because:
“… the Framers (of the Constitution) 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.”
With the foregoing in mind, is submitted that this “six-month rotation” scheme is unconstitutional because it clearly trivializes the JBC’s role of recommending appointments to the Judiciary. For how can the Member from Congress judiciously study the applicants’ qualifications if his membership in the JBC is very short?