The Supreme Court

a. Composition, qualification and vacancy (Article 8, Sec. 4(1) and 7

Section 4.

1. The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

Section 7.

1. No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.

2. The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.

3. A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

b. Decision-making

Sessions of the Sc and votes required to render a decision pr resolution:

G.R. No. 127022 June 28, 2000

FIRESTONE CERAMICS, INC., BOOMTOWN DEVELOPMENT CORPORATION, Spouses CYNTHIA D. CHING and CHING TIONG KENG, Spouses CARMEN SOCO and LORENZO ONG ENG CHONG, Spouses SOLEDAD B. YU and YU SY CHIA and LETICIA NOCOM CHAN, petitioners, vs.COURT OF APPEALS, LORENZO J. GANA, PATROCINIO E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO, EDGARDO C. ESPINOSA, LUCIA E. LAPERAL, NORMA C. ESPINOSA, TERESITA E. CASAL, PELTAN DEVELOPMENT, INC., REGIONAL TRIAL COURT (formerly CFI of Rizal) and the REGISTER OF DEEDS OF LAS PIÑAS, METRO MANILA, respondents, ALEJANDRO B. REY, petitioner-intervenor.

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G.R. No. 127245

REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR, LAND MANAGEMENT BUREAU, petitioner,vs.HON. COURT OF APPEALS, LORENZO J. GANA, PATROCNIO E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO, EDGARDO C. ESPINOSA, LUCIA A. LAPERAL, NORMA C. ESPINOSA, TERESITA E. CASAL, PELTAN DEVELOPMENT INC., THE REGIONAL TRIAL COURT (formerly CFI) of RIZAL, and THE REGISTER OF DEEDS OF LAS PIÑAS, respondents.

R E S O L U T I O N

PURISIMA, J.:

This resolves petitioners' Motions to Refer to the Court En Banc these consolidated cases, which the Third Division decided on September 2, 1999. The motions for reconsideration seasonably filed by the petitioners, Republic of the Philippines and Firestone Ceramics, Inc., et al., are pending.

Under Supreme Court Circular No. 2-89, dated February 7, 1989, as amended by the Resolution of November 18, 1993:

. . ., the following are considered en banc cases:

1. Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question;

2. Criminal cases in which the appealed decision imposes the death penalty;

3. Cases raising novel questions of law;

4. Cases affecting ambassadors, other public ministers and consuls;

5. Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission on Elections, and Commission on Audit;

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000.00 or both;

7. Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed;

8. Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court en banc and are acceptable to a majority of the actual membership of the courten banc; and

9. All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention.

The cases at bar involve a vast tract of land with an area of around ninety-nine (99) hectares presumptively belonging to the Republic of the Philippines, which land had been adjudicated to private individuals by a court alleged to be without jurisdiction. Since the validity of the said decision and the original certificate of title as well as transfer certificates of title issued pursuant thereto hinges on the classification of subject area at the time it was so adjudicated, determination of the validity of the disposition thereof is in order.

The assailed decision does not indicate the classification of the land in question, when the herein private respondents obtained their decree of registration thereover.

In Limketkai Sons Milling, Inc. vs. Court of Appeals, the Court conceded that it is not infallible. Should any error of judgment be perceived, it does not blindly adhere to such error, and the parties adversely affected thereby are not precluded from seeking relief therefrom, by way of a motion for reconsideration. In this jurisdiction, rectification of an error, more than anything else, is of paramount importance.

Here, there was submitted to the Court en consulta, petitioners' Motions to Refer to the Court En Bancthese consolidated cases for the consideration of the Court. A pleading, entitled "FOR THE CONSIDERATION OF THE COURT EN BANC, EN CONSULTA," was presented but when the same was first brought to its attention on March 7, 2000, the Court opined that since the Third Division had not yet acted on subject motions to refer the cases to the Banc, it was then premature for the Court to resolve the consulta. However, the Court succinctly cautioned that the action of the Third Division on the matter would just be tentative.

On March 8, 2000, the Third Division voted 4-1 to deny petitioners' motion to transfer these cases to the Banc. Thus, on March 14, 2000, the Court deliberated on the consulta and thereafter, voted 9-5 to accept the cases for the Banc to pass upon in view of the finding that the cases above entitled are of sufficient importance to merit its attention. Evidently, the action of the Court under the premises is a legitimate and valid exercise of its RESIDUAL POWER within the contemplation of paragraph 9 of the Resolution En Bancof November 18, 1993, which reads: "All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention." (emphasis supplied)

Untenable is the contention of Justice Panganiban that the Chief Justice and the eight (8) Associate Justices who voted to treat these consolidated cases as En

Banc cases, have not given any cogent or compelling reason for such action. Considering that paragraph 9 of the Resolution of this Court dated November 18, 1993, has been cited to support the majority opinion, it is decisively clear that these consolidated cases have been found to be of sufficient importance to merit the attention and disposition of the entire Court en banc and therefore, the prayer of the Republic of the Philippines and the private petitioners for the Court en banc to hear and resolve their pending motions for reconsideration, is meritorious. The aforesaid finding by the Court constitutes a reason cogent and compelling enough to warrant the majority ruling that the Court En Banc has to act upon and decide petitioners' motions for reconsideration.1âwphi1.nêt

It bears stressing that where, as in the present cases, the Court En Banc entertains a case for its resolution and disposition, it does so without implying that the Division of origin is incapable of rendering objective and fair justice. The action of the Court simply means that the nature of the cases calls for en banc attention and consideration. Neither can it be concluded that the Court has taken undue advantage of sheer voting strength. It was merely guided by the well-studied finding and sustainable opinion of the majority of its actual membership — that, indeed, subject cases are of sufficient importance meriting the action and decision of the whole Court. It is, of course, beyond cavil that all the members of this highest Court of the land are always embued with the noblest of intentions in interpreting and applying the germane provisions of law, jurisprudence, rules and Resolutions of the Court — to the end that public interest be duly safeguarded and rule of law be observed.

Reliance by Justice Panganiban on the ruling of the Court in the Sumilao case is misplaced. The said case is not on all fours with these cases. In the Sumilao case, before it was brought to the Banc en consulta, the motion for reconsideration of the decision therein rendered had been voted upon by the Second Division with a vote of 2-2. The Court ruled that the stalemate resulting from the said voting constituted a denial of the motion for reconsideration.

In the two consolidated cases under consideration, however, the Motions for Reconsideration of the petitioners, Republic of the Philippines and Firestone Ceramics, Inc., et al., are pending and unresolved.

Taking into account the importance of these cases and the issues raised, let alone the enormous value of the area in litigation, which is claimed as government property, there is merit in the prayer of petitioners that their pending motions for reconsideration should be resolved by the Court En Banc.

WHEREFORE, these consolidated cases are considered and treated as en banc cases; and petitioners' motions for reconsideration are hereby set for oral argument on July 18, 2000, at 11:00 a.m. Let corresponding notices issue.

SO ORDERED.

Article 8, Section 4(3)

Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc

Procedure if the necessary majority cannot be had

Section 7, Rule 56 of the Rules of Court

Isagani Cruz v. Dept. of Energy and Natural Resources, G.R. No. 135385, December 6, 2000

FACTS: Cruz, a noted constitutionalist, assailed the validity of the RA 8371 or the Indigenous People’s Rights Act on the ground that the law amount to an unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution. The IPRA law basically enumerates the rights of the indigenous peoples over ancestral domains which may include natural resources. Cruz et al content that, by providing for an all-encompassing definition of “ancestral domains” and “ancestral lands” which might even include private lands found within said areas, Sections 3(a) and 3(b) of said law violate the rights of private landowners.

ISSUE: Whether or not the IPRA law is unconstitutional.

HELD: The SC deliberated upon the matter. After deliberation they voted and reached a 7-7 vote. They deliberated again and the same result transpired. Since there was no majority vote, Cruz’s petition was dismissed and the IPRA law was sustained. Hence, ancestral domains may include natural resources – somehow against the regalian doctrine

Judiciary Act of 1948, Section 9(3)

Section 9. The Supreme Court; quorum of the Court; designation of Justices of the Court of Appeals and District Judges to sit in the Supreme Court; number of Justices necessary to reach a decision. - The Supreme Court of the Philippines shall consist of a Chief Justice and ten Associate Justices, which shall sit in banc in the hearing and determination of all cases within its jurisdiction. The presence of six Justices shall be necessary to constitute a quorum except when the judgment of the lower court imposes the death penalty, in which case the presence of eight Justices shall be necessary to constitute a quorum. In the absence of a quorum, the Court shall stand ipso facto adjourned until such time as the requisite number shall be

present, and a memorandum showing this fact shall be inserted by the clerk in the minutes of the court.

If on account of illness, absence, or incapacity upon any of the grounds mentioned in Section one, Rule One hundred and twenty-six of the Rules of Court, of any of the Justices of the Supreme Court, or whenever, by reason of temporary disability of any Justice thereof or vacancies occurring therein, the requisite number of Justices necessary to constitute a quorum or to render a judgment in any given case, as heretofore provided, is not present, the President of the Philippines, upon the recommendation of the Chief Justice, may designate such number of Justices of the Court of Appeals or District Judges as may be necessary, to sit temporarily as Justices of the Supreme Court, in order to form a quorum, or until a judgment in said case is reached: Provided, however, That no Justice of the Court of Appeals or District Judge may be designated to act in any case in the decision of which he has taken part.

The concurrence of at least six Justices of the Court shall be necessary for the pronouncement of a judgment. However, for the purpose of declaring a law or a treaty unconstitutional, at least eight Justices must concur. When the necessary majority, as herein provided, to declare a law or a treaty unconstitutional cannot be had, the Court shall so declare, and in such case the validity or constitutionality of the Act or treaty involved shall be deemed upheld.

Whenever the judgment of the lower court imposes the death penalty, the case shall be determined by eight Justices of the Court. When eight Justices fail to reach a decision as herein provided, the penalty next lower in degree than the death shall be imposed

Period to decide cases:

Article 8, Section 15(1) and (4)

(1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.

(4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.

RAUL H. SESBREO, G.R. No. 161390

Petitioner,

- versus - HON. COURT OF APPEALS, PROVINCE OF CEBU, GOV. EDUARDO R. GULLAS, THE PROVINCIAL TREASURER, THE PROVINCIAL AUDITOR, THE PROVINCIAL ENGINEER PATROCINIO BACAY (sued both in their official and personal capacities),

Respondents.

Present: YNARES-SANTIAGO, J.,Chairperson,AUSTRIA-MARTINEZ,CHICO-NAZARIO,NACHURA, andREYES, JJ. Promulgated: April 16, 2008

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DECISION

NACHURA, J.:

For review is the Decision[1] of the Court of Appeals (CA) dated July 23, 2003 and its Resolution[2] dated January 12, 2004 in CA-G.R. CV No. 43287. The assailed decision reversed the decision[3] of the Regional Trial Court (RTC), Branch 6, Cebu City in Civil Case R-19022 insofar as the RTC held the Province of Cebu liable for damages to petitioner Raul H. Sesbreo. The assailed resolution denied petitioners motion for reconsideration.

On January 26, 1970, Mrs. Rosario Sen and other camineros[4] hired the petitioner to

prosecute Civil Cases Nos. R-10933[5] and R-11214,[6] evidenced by an Agreement,[7] the terms of which read as follows:

AGREEMENT

WE, the undersigned, hereby agree to pay Atty. Raul H. Sesbreo,

thirty (30%) percent of whatever back salaries, damages, etc. that we may recover in the mandamus and other cases that we are filing or have filed against the Province of Cebu, the Provincial Governor, etc., whether or not the said cases will be amicably settled or decided by the courts by final judgment. We shall take care of all expenses in connection with the said cases.[8]

During the pendency of the aforesaid cases or on April 17, 1979, petitioner registered his charging/retaining lien based on the Agreement.[9]

The camineros obtained favorable judgment when the Court of First Instance (now RTC) of Cebu ordered that they be reinstated to their original positions with back salaries,

together with all privileges and salary adjustments or increases.[10] Aggrieved, the Commissioner of Public Highways and the District Engineer filed certiorari cases before this Court where the petitioner willingly rendered further legal assistance and represented the camineros.

When respondent Eduardo R. Gullas (Gov. Gullas) assumed the position of governor

of Cebu, he proposed the compromise settlement of all mandamus cases then pending against the province which included Civil Cases Nos. R-10933 and R-11214 handled by the petitioner. On April 21, 1979, the camineros, represented by the petitioner, and the province of Cebu, through then Gov. Gullas, forged a Compromise Agreement,[11] with the following terms and conditions:

1. The respondent Province of Cebu represented in this act by Gov. Eduardo R. Gullas, duly authorized by proper resolution of the Sanguniang Panlalawigan, hereby agrees to immediately appropriate and pay full backwages and salaries as awarded by the trial court in its decision to all the private respondents-employees from and after July 1, 1968, the date of their termination, up to the date of the approval of the herein Compromise Agreement by the Honorable Supreme Court, except for those who are qualified for compulsory retirement whose back salaries and wages shall be limited up to the effective date of their retirement.

x x x x 9. That the amounts payable to the employees concerned

represented by Atty. Raul H. Sesbreo is subject to said lawyers charging and retaining liens as registered in the trial court and in the Honorable Court of Appeals.

x x x x 11. That upon request of the employees concerned, most of

whom are in dire actual financial straits, the Province of Cebu is agreeable to paying an advance of P5,000.00 to each employee payable through their counsel, Atty. Raul H. Sesbreo, deductible from the total amount that each will receive from the Province of Cebu, effective upon confirmation by the Honorable Solicitor General, the Supreme Court and the Philippine National Bank where the JJ (now infrastructure funds) are now in deposit under trust.[12]

Apparently, the camineros waived their right to reinstatement embodied in the CFI decision and the province agreed that it immediately pay them their back salaries and other claims. This Court adopted said compromise agreement in our decision[13] dated December 18, 1979.[14]

In view of the finality of the above decision, the camineros, through their new counsel (who substituted for the petitioner), moved for its execution. The court then ordered the issuance

of a partial writ of execution directing the payment of only 45% of the amount due them based on the computation of the provincial engineering office as audited by the authority concerned.[15] The court did not release the remaining 55%, thus holding in abeyance the payment of the lawyers fees pending the determination of the final amount of such fees.[16] However, instead of complying with the court order directing partial payment, the province of Cebu directly paid the camineros the full amount of their adjudicated claims.[17]

Thus, petitioner filed the complaint for Damages (Thru Breach of Contract) and Attorneys Fees against the Province of Cebu, the provincial governor, treasurer, auditor, and engineer in their official and personal capacities, as well as against his former clients (the camineros).[18]

Petitioner anchored his claim on the provision of the Civil Code, specifically Article 19[19] thereof. He alleged that by directly paying the camineros the amounts due them, the respondents induced the camineros to violate their written contract for attorneys fees.[20] He likewise claimed that they violated the compromise agreement approved by the Court by computing the camineros money claims based on the provincial instead of the national wage rate which, consequently, yielded a lower amount.[21] Petitioner went on to say that although he was not a party to the above contracts, by virtue of the registration of his charging lien, he was a quasi-party and thus, had legal standing to institute the case below.[22]

On August 23, 1982, petitioner moved to dismiss the case against the camineros after he had entered into an agreement with them and settled their differences. [23] The case, however, proceeded against the respondents. On October 18, 1992, the RTC rendered a decision in favor of the petitioner and against the respondent province of Cebu, the pertinent portion of which reads:

Wherefore, for all the foregoing, judgment is rendered, ordering the defendant Province of Cebu to pay the plaintiff the following sums:

(a) P669,336.51 in actual damages; with interest of

12% per annum from date of demand until fully paid;

(b) P20,000.00 in moral damages;(c) P5,000.00 in litigation expenses; and(d) To pay the costs.[24]

While maintaining the validity of the compromise agreement, the trial court found that the petitioners money claims should have been computed based on the national and not the provincial rate of wages paid the camineros. Accordingly, the court declared that the petitioner was prejudiced to the extent of the difference between these two rates. The court further upheld the petitioners status as a quasi-party considering that he had a registered charging lien. However, it did not give credence to the petitioners claim that the respondent public officials induced the camineros to violate their contract, and thus, absolved them from liability.

On appeal, the CA reversed the trial courts decision and dismissed the complaint.

[25] The appellate court concluded that petitioner failed to sufficiently establish his allegation

that the respondents induced the camineros to violate the agreement for attorneys fees and the compromise agreement, and that he suffered damage due to respondents act of directly paying the camineros the amounts due them.[26]

Hence, the instant petition. In his Memorandum, petitioner raises the following

issues:

1. RESPONDENT COURT OF APPEALS ERRED IN NOT AFFIRMING THE TRIAL COURT DECISION DUE TO LONG DELAY IN DECIDING CA-G.R. CV NO. 43287.

2. RESPONDENT COURT OF APPEALS ERRED IN NOT DISMISSING

THE APPEAL IN CA-G.R. CV NO. 43287 FOR FAILURE TO PROSECUTE AND DUE TO THE FATALLY-DEFECTIVE APPELLANTS BRIEF.

3. RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE

TRIAL COURT DECISION BY DECLARING THAT THE TRIAL COURT SHOULD NOT FIX THE ATTORNEYS FEES OF PETITIONER DESPITE THE FACT THAT THE TRIAL COURT DECISION IS CLEAR THAT WHAT WAS ADJUDGED WAS THE DECLARATION THAT THERE WAS BREACH OF THE COMPROMISE CONTRACT AND DAMAGES ARE TO BE AWARDED THE PETITIONER.

4. RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING

RESPONDENTS GULLAS, RESENTES, SANCHEZ AND BACAY AS PERSONALLY LIABLE AND THAT THEIR PERSONAL LIABILITY IS SOLIDARY WITH THAT OF RESPONDENT PROVINCE OF CEBU.

5. RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING

THAT PRIVATE RESPONDENTS ARE SOLIDARILY LIABLE TO PAY TO PETITIONER ACTUAL OR COMPENSATORY, MORAL, EXEMPLARY, NOMINAL, TEMPERATE DAMAGES, LITIGATION EXPENSES AND LOSS OF EARNINGS AND INTERESTS.[27]

The petition is bereft of merit. Petitioner insists that the CA should have affirmed the trial courts decision in view of

the delay in resolving the case, and should have denied the appeal because of the formal defects in the appellants brief.[28] Petitioner cites the cases of Malacora v. Court of Appeals[29] and Flora v. Pajarillaga[30] where this Court held that an appealed case which had been pending beyond the time fixed by the Constitution should be deemed affirmed.

We cannot apply the cited cases to the one at bench because they were decided on

the basis of Section 11 (2), Article X of the 1973 Constitution, which reads:

SEC. 11. x x x (2) With respect to the Supreme Court and other collegiate appellate

courts, when the applicable maximum period shall have lapsed without

the rendition of the corresponding decision or resolution because the necessary vote cannot be had, the judgment, order, or resolution appealed from shall be deemed affirmed x x x.

That provision is not found in the present Constitution. The court, under the 1987 Constitution, is now mandated to decide or resolve the case or matter submitted to it for determination within specified periods.[31] Even when there is delay and no decision or resolution is made within the prescribed period, there is no automatic affirmance of the appealed decision. The appellate court, therefore, cannot be faulted in not affirming the RTCs decision. While we do not tolerate delay in the disposition of cases, we cannot dismiss appealed cases solely because they had been pending in court for a long period, especially when the appeal is highly meritorious as in the present case.

Likewise, we cannot agree with the petitioner that the appealed case be dismissed on account of the formal defects in respondents appellants brief filed before the CA. The requirements laid down by the Rules of Court on the contents of the brief are intended to aid the appellate court in arriving at a just and proper conclusion of the case. [32]However, despite its deficiencies, respondents appellants brief is sufficient in form and substance as to apprise the appellate court of the essential facts and nature of the case, as well as the issues raised and the laws necessary for the disposition of the same.[33] Thus, we sustain the CAs decision to rule on the merits of the appeal instead of dismissing it on mere technicality.

Now, on the main issue of whether or not respondents are liable for damages for

breach of contract. Petitioner clarifies that he instituted the instant case for breach of the compromise

agreement and not for violation of the agreement for attorneys fees as mistakenly concluded by the appellate court. He also cites Calalang v. De Borja[34] in support of his right to collect the amounts due him against the judgment debtor (the respondents).[35]Lastly, petitioner argues that the respondent public officials acted beyond the scope of their authority when they directly paid the camineros their money claims and failed to withhold the petitioners fees. There is, according to the petitioner, a showing of bad faith on the part of the province and the public officials concerned.After a careful scrutiny of the record of the case, we find no compelling reason to disturb the appellate courts conclusion. We would like to stress at this point that the compromise agreement had been validly entered into by the respondents and the camineros and the same became the basis of the judgment rendered by this Court. Its validity, therefore, had been laid to rest as early as 1979 when the Court promulgated its decision in Commissioner of Public Highways v. Burgos.[36] In fact, the judgment had already been fully satisfied by the respondents. It was precisely this full satisfaction of judgment that gave rise to the instant controversy, based primarily on the petitioners claim that he was prejudiced because of the following: 1) the wrong computation in the camineros money claims by using the provincial and not the national wage rate; and 2) the mode of satisfying the judgment through direct payment which impaired his registered charging lien.

Petitioners claim for attorneys fees was evidenced by an agreement for attorneys fees voluntarily executed by the camineros where the latter agreed to pay the former thirty (30%) percent of whatever back salaries, damages, etc. that they might recover in the

mandamus and other cases that they were filing or have filed. Clearly, no fixed amount was specifically provided for in their contract nor was a specified rate agreed upon on how the money claims were to be computed. The use of the word whatever shows that the basis for the computation would be the amount that the court would award in favor of the camineros. Considering that the parties agreed to a compromise, the payment would have to be based on the amount agreed upon by them in the compromise agreement approved by the court. And since the compromise agreement had assumed finality, this Court can no longer delve into its substance, especially at this time when the judgment had already been fully satisfied. We cannot allow the petitioner to question anew the compromise agreement on the pretext that he suffered damage. As long as he was given the agreed percentage of the amount received by the camineros, then, the agreement is deemed complied with, and petitioner cannot claim to have suffered damage.

Petitioner likewise claims that he was prejudiced by respondents act in directly

paying the camineros the amounts due them, as it rendered inutile the charging lien duly registered for his protection.

To insure payment of his professional fees and reimbursement of his lawful disbursements in keeping with his dignity as an officer of the court, the law creates in favor of a lawyer a lien, not only upon the funds, documents and papers of his client which have lawfully come into his possession until what is due him has been paid, but also a lien upon all judgments for the payment of money and executions issued pursuant to such judgments rendered in the case wherein his services have been retained by the client. [37] Section 37, Rule 138 of the Rules of Court specifically provides:

Section 37. Attorneys liens. An attorney shall have a lien upon the funds, documents and papers of his client, which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

A charging lien is an equitable right to have the fees and costs due to the lawyer for services in a suit secured to him out of the judgment or recovery in that particular suit. It is based on the natural equity that the plaintiff should not be allowed to appropriate the whole of a judgment in his favor without paying thereout for the services of his attorney in obtaining such judgment.[38]

In this case, the existence of petitioners charging lien is undisputed since it was properly registered in the records. The parties even acknowledged its existence in their compromise

agreement. However, a problem arose when the respondents directly paid in full the camineros money claims and did not withhold that portion which corresponds to petitioners fees. When the judgment debt was fully satisfied, petitioner could have enforced his lien either against his clients (the camineros herein) or against the judgment debtor (the respondents herein). The clients, upon receiving satisfaction of their claims without paying their lawyer, should have held the proceeds in trust for him to the extent of the amount of his recorded lien, because after the charging lien had attached, the attorney is, to the extent of said lien, regarded as an equitable assignee of the judgment or funds produced by his efforts. [39] The judgment debtors may likewise be held responsible for their failure to withhold from the camineros the amount of attorneys fees due the petitioner.In the instant case, the petitioner rightly commenced an action against both his clients and the judgment debtors. However, at the instance of the petitioner himself, the complaint against his clients was withdrawn on the ground that he had settled his differences with them. He maintained the case against respondents because, according to him, the computation of the camineros money claims should have been based on the national and not the provincial wage rate. Thus, petitioner insists that the respondents should be made liable for the difference. While the respondents may have impaired the petitioners charging lien by satisfying the judgment without regard for the lawyers right to attorneys fees, we cannot apply the doctrine enunciated in Calalang v. Judge de Borja,[40] because of the peculiar circumstances obtaining in this case. In Calalang, this Court stressed that the judgment debtor may be held responsible for his failure to withhold the amount of attorneys fees in accordance with the duly registered charging lien.[41] However, there is a disparity between the two cases, because, in this case, the petitioner had withdrawn his complaint against the camineros with whom he had a contract for legal services. The withdrawal was premised on a settlement, which indicates that his former clients already paid their obligations. This is bolstered by the certification of the clerk of court that his former clients had deposited their passbooks to ensure payment of the agreed fees. Having been paid by his clients in accordance with the agreement, his claim against the respondents, therefore, has no leg to stand on. Neither can the petitioner rely on Bacolod Murcia Milling Co., Inc. v. Henares, etc.[42] where this court declared that satisfaction of the judgment, in general, does not by itself bar or extinguish the attorneys liens, as the court may even vacate such satisfaction and enforce judgment for the amount of the lien.[43] However, the satisfaction of the judgment extinguishes the lien if there has been a waiver, as shown either by the attorneys conduct or by his passive omission.[44] In the instant case, petitioners act in withdrawing the case against the camineros and agreeing to settle their dispute may be considered a waiver of his right to the lien. No rule will allow a lawyer to collect from his client and then collect anew from the judgment debtor except, perhaps, on a claim for a bigger amount which, as earlier discussed, is baseless. Lawyering is not a moneymaking venture and lawyers are not merchants. Law advocacy is not capital that yields profits. The returns it births are simple rewards for a job done or service rendered. It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from governmental interference, is impressed with a public interest, for which it is subject to state regulation.[45]

Considering that petitioners claim of higher attorneys fees is baseless and considering further that he had settled his case as against his former clients, we cannot sustain his right to damages for breach of contract against the respondents, even on the basis of Articles 1191[46] or 1311.[47] Although we sustain his status to institute the instant case, we cannot render a favorable judgment because there was no breach of contract. Even if there was such a breach, he had waived his right to claim against the respondents by accepting payment and/or absolving from liability those who were primarily liable to him. Thus, no liability can be imputed to the province of Cebu or to the respondent public officials, either in their personal or official capacities. Lastly, we cannot ascribe bad faith to the respondents who directly paid the camineros the amounts due them. The records do not show that when they did so, they induced thecamineros to violate their contract with the petitioner; nor do the records show that they paid their obligation in order to cause prejudice to the petitioner. The attendant circumstances, in fact, show that the camineros acknowledged their liability to the petitioner and they willingly fulfilled their obligation. It would be contrary to human nature for the petitioner to have acceded to the withdrawal of the case against them, without receiving the agreed attorneys fees. WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Court of Appeals dated July 23, 2003 and its Resolution dated January 12, 2004 in CA-G.R. CV No. 43287 are AFFIRMED.

SO ORDERED

AM No. 00-8-05-SC, Nov. 28, 2001 (Case Digest)Issue Before The Court

The sole issue to be determined by the Court is whether the respondent Sandiganbayan Justices may be held administratively liable for their actions which unduly delayed the execution of the final sentence ofconviction of accused Velasco.

The Court’s Ruling

After a judicious review of the records, the Court finds no grave misconduct or violation of a specific provision of the Code of JudicialConduct to have been committed by the Sandiganbayan Justices. “Misconduct means intentional wrongdoing or deliberate violation ofa rule of law or a standard of behavior.

To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions of a public officer.

In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of an established rule must be established.”

In this case, the actions of the Sandiganbayan Justices respecting theexecution of the final judgment against accused Velasco were shown to be in respectful deference to the Court’s action on the various petitions filed by the former, who apparently exhausted what he perceived were validavailable remedies under the law. Records are bereft of evidence showingany trace of corruption, clear intent to violate the law or flagrant disregard of the rules as to hold them administratively liable for grave misconduct.However, the becoming modesty that the Sandiganbayan Justices haveexhibited in this case cannot detract from the fact that the judgment ofconviction of accused Velasco should have been immediately executed,absent any restraining order from the Court, in violation of the Court'sdirective in A.M. Circular No. 07-7-12-SC, adopting amendments to Rule65 of the Rules of Court, inter alia. Thus, Section 7 of Rule 65 now states: SEC. 7. Expediting proceedings; injunctive relief. –

The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the partiespending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case.

The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction,or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. (Emphasis supplied)

Thus, judicial courtesy may no longer be invoked by the Sandiganbayan Justices in the execution of the final judgment against accused Velasco. This lapse in judgment on the part of the Sandiganbayan Justices deserves admonition

A. M. No. 00-8-05-SC November 28, 2001

RE: PROBLEM OF DELAYS IN CASES BEFORE THE SANDIGANBAYAN

R E S O L U T I O N

PARDO, J.:

The Case

Submitted to the Court for consideration is a resolution of the Board of Governors, Integrated Bar of the Philippines (hereafter, the IBP) recommending an inquiry into the causes of delays in the resolution of incidents and motions and in the decision of cases pending before the Sandiganbayan.

The Antecedents

On July 31, 2000, the IBP, through its National President, Arthur D. Lim, transmitted to the Court a Resolution1addressing the problem of delays in cases pending before the Sandiganbayan (hereafter, the Resolution).2 We quote the Resolution in full:3

"WHEREAS, Section 16, Article III of the Constitution guarantees that, "[a]ll persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies,"

"WHEREAS, Canon 12 of the Code of Professional Responsibility for Lawyers mandates that "[a] lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice;"

"WHEREAS, it is the duty of the Integrated Bar of the Philippines to undertake measures to assist in the speedy disposition of cases pending before the various courts and tribunals;

"WHEREAS, the Integrated Bar of the Philippines has received numerous complaints from its members about serious delays in the decision of cases and in the resolution of motions and other pending incidents before the different divisions of the Sandiganbayan;

"WHEREAS, Supreme Court Administrative Circular No. 10-94 requires all Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts to submit to the Supreme Court a bi-annual report indicating the title of the case, its date of filing, the date of pre-trial in civil cases and arraignment in criminal cases, the date of initial trial, the date of last hearing and the date that the case is submitted for decision, and to post, in a conspicuous place within its premises, a monthly list of cases submitted for decision;

"WHEREAS, Supreme Court Administrative Circular No. 10-94 has not been made applicable to the Sandiganbayan;

"WHEREAS, considering that the Sandiganbayan is also a trial court, the requirements imposed upon trial courts by Supreme Court Administrative Circular No. 10-94 should also be imposed upon the Sandiganbayan;

"NOW, THEREFORE, in view of the foregoing, the Board of Governors of the Integrated Bar of the Philippines hereby resolves as follows:

"1. To recommend to the Supreme Court that Supreme Court Administrative Circular No. 10-94 be made applicable to the Sandiganbayan in regard cases over which the Sandiganbayan has original jurisdiction; and

"2. To recommend to the Supreme Court an inquiry into the causes of delay in the resolution of incidents and motions and in the decision of cases before the Sandiganbayan for the purpose of enacting measures intended at avoiding such delays.

"Done in Los Baños, Laguna, this 29th day of July, 2000."

On August 8, 2000, the Court required Sandiganbayan Presiding Justice Francis E. Garchitorena to comment on the letter of the IBP and to submit a list of all Sandiganbayan cases pending decision, or with motion for reconsideration pending resolution, indicating the dates they were deemed submitted for decision or resolution.4

On September 27, 2000, complying with the order, Presiding Justice Francis E. Garchitorena submitted a report5(hereafter, the compliance) admitting a number of cases submitted for decision and motion for reconsideration pending resolution before its divisions. We quote:

"Cases Submitted "For Decision

W/ Motions For Reconsideration

"1st Division 341 None

"2nd Division 5 None

"3rd Division 12 None

"4th Division 5 None

"5th Division 52 1

"Total 415"6

Thus, the Sandiganbayan has a total of four hundred fifteen (415) cases for decision remaining undecided long beyond the reglementary period to decide, with one case submitted as early as May 24, 1990,7 and motion for reconsideration which has remained unresolved over thirty days from submission.8

On October 20, 2000, Sandiganbayan Presiding Justice Francis E. Garchitorena submitted a "schedule of cases submitted for decision, the schedule indicating the number of detained prisoners, of which there are (were) none."9

On October 26, 2000, the IBP submitted its reply to the compliance stating: First, that it was not in a position to comment on the accuracy of the compliance; nonetheless, it showed that there was much to be desired with regard to the expeditious disposition of cases, particularly in the Sandiganbayan's First Division, where cases submitted for decision since 1990 remained unresolved. Second, the compliance did not include pending motions, and it is a fact that motions not resolved over a long period of time would suspend and delay the disposition of a case. Third, since the Sandiganbayan is a trial court, it is required to submit the same reports required of Regional Trial Courts. Fourth, the Constitution10states that, "all lower collegiate courts" must decide or resolve cases or matters before it within twelve (12) months "from date of submission"; however, the Sandiganbayan, as a trial court, is required to resolve and decide cases within a reduced period of three (3) months like regional trial courts, or at the most, six (6) months from date of submission.11

On November 21, 2000, the Court resolved to direct then Court Administrator Alfredo L. Benipayo (hereafter, the OCA) "to conduct a judicial audit of the Sandiganbayan, especially on the cases subject of this administrative matter, and to submit a report thereon not later than 31 December 2000."12

On December 4, 2000, in a letter addressed to the Chief Justice, Presiding Justice Francis E. Garchitorena admitted that the First Division of the Sandiganbayan13 has a backlog of cases; that one case14 alone made the backlog of the First Division so large, involving 156 cases but the same has been set for promulgation of decision on December 8, 2000, which would reduce the backlog by at least fifty percent (50%).15

On January 26, 2001, the Court Administrator submitted a memorandum to the Court16 stating that the causes of delay in the disposition of cases before the Sandiganbayan are:17

(1) Failure of the Office of the Special Prosecutor to submit reinvestigation report despite the lapse of several years;

(2) Filing of numerous incidents such as Motion to Dismiss, Motion to Quash, Demurrer to Evidence, etc. that remain unresolved for years;

(3) Suspension of proceedings because of a pending petition for certiorari and prohibition with the Supreme Court;

(4) Cases remain unacted upon or have no further settings despite the lapse of considerable length of time; and

(5) Unloading of cases already submitted for decision even if the ponente is still in service.

We consider ex mero motu the Resolution of the Integrated Bar of the Philippines (IBP) as an administrative complaint against Presiding Justice Francis E. Garchitorena for "serious delays in the decision of cases and in the resolution of motions and other pending incidents before the different divisions of the Sandiganbayan," amounting to incompetence, inefficiency, gross neglect of duty and misconduct in office.

We find no need to conduct a formal investigation of the charges in view of the admission of Justice Francis E. Garchitorena in his compliance of October 20, 2000, that there are indeed hundreds of cases pending decision beyond the reglementary period of ninety (90) days from their submission. In one case, he not only admitted the delay in deciding the case but took sole responsibility for such inaction for more than ten (10) years that constrained this Court to grant mandamus to dismiss the case against an accused to give substance and meaning to his constitutional right to speedy trial.18

The Issues

The issues presented are the following: (1) What is the reglementary period within which the Sandiganbayan must decide/resolve cases falling within its jurisdiction? (2) Are there cases submitted for decision remaining undecided by the Sandiganbayan or any of its divisions beyond the afore-stated reglementary period? (3) Is Supreme Court Administrative Circular No. 1094 applicable to the Sandiganbayan?19

The Court's Ruling

We resolve the issues presented in seriatim.

1. Period To Decide/Resolve Cases.-- There are two views. The first view is that from the time a case is submitted for decision or resolution, the Sandiganbayan has twelve (12) months to decide or resolve it.20 The second view is that as a court with trial function, the Sandiganbayan has three (3) months to decide the case from the date of submission for decision.21

Article VIII, Section 15 (1) and (2), of the 1987 Constitution provides:

"Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission to the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.

"(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself."22

The above provision does not apply to the Sandiganbayan. The provision refers to regular courts of lower collegiate level that in the present hierarchy applies only to the Court of Appeals.23

The Sandiganbayan is a special court of the same level as the Court of Appeals and possessing all the inherent powers of a court of justice,24 with functions of a trial court.25

Thus, the Sandiganbayan is not a regular court but a special one.26 The Sandiganbayan was originally empowered to promulgate its own rules of procedure.27 However, on March 30, 1995, Congress repealed the Sandiganbayan's power to promulgate its own rules of procedure28 and instead prescribed that the Rules of Court promulgated by the Supreme Court shall apply to all cases and proceedings filed with the Sandiganbayan.29

"Special courts are judicial tribunals exercising limited jurisdiction over particular or specialized categories of actions. They are the Court of Tax Appeals, the Sandiganbayan, and the Shari'a Courts."30

Under Article VIII, Section 5 (5) of the Constitution "Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court."

In his report, the Court Administrator would distinguish between cases which the Sandiganbayan has cognizance of in its original jurisdiction,31 and cases which fall within the appellate jurisdiction of the Sandiganbayan.32 The Court Administrator posits that since in the first class of cases, the Sandiganbayan acts more as a trial court, then for that classification of cases, the three (3) month reglementary period applies. For the second class of cases, the Sandiganbayan has the twelve-month reglementary period for collegiate courts.33 We do not agree.

The law creating the Sandiganbayan, P.D. No. 160634 is clear on this issue.35 It provides:

"Sec. 6. Maximum period for termination of cases – As far as practicable, the trial of cases before the Sandiganbayan once commenced shall be continuous until terminated and the judgment shall be rendered within three (3) months from the date the case was submitted for decision."

On September 18, 1984, the Sandiganbayan promulgated its own rules,36 thus:37

"Sec. 3 Maximum Period to Decide Cases – The judgment or final order of a division of the Sandiganbayan shall be rendered within three (3) months from the date the case was submitted for decision (italics ours)."

Given the clarity of the rule that does not distinguish, we hold that the three (3) month period, not the twelve (12) month period, to decide cases applies to the Sandiganbayan. Furthermore, the Sandiganbayan presently sitting in five (5) divisions,38 functions as a trial court. The term "trial" is used in its broad sense, meaning, it allows introduction of evidence by the parties in the cases before it.39 The Sandiganbayan, in original cases within its jurisdiction, conducts trials, has the discretion to weigh the evidence of the parties, admit the evidence it regards as credible and reject that which they consider perjurious or fabricated.40

Compliance with its Own Rules

In Department of Agrarian Reform Adjudication Board (DARAB) v. Court of Appeals,41 the Court faulted the DARAB for violating its own rules of procedure. We reasoned that the DARAB does not have unfettered discretion to suspend its own rules. We stated that the DARAB "should have set the example of observance of orderly procedure." Otherwise, it would render its own Revised Rules of Procedure uncertain and whose permanence would be dependent upon the instability of its own whims and caprices.

Similarly, in Cabagnot v. Comelec,42 this Court held that the Commission on Elections ought to be the first one to observe its own Rules. Its departure from its own rules constitutes "arrogance of power" tantamount to abuse. Such inconsistency denigrates public trust in its objectivity and dependability. The Court reminded the Comelec to be more judicious in its actions and decisions and avoid imprudent volte-face moves that undermine the public's faith and confidence in it.

The ratio decidendi in the afore-cited cases applies mutatis mutandis to the Sandiganbayan. The Sandiganbayan ought to be the first to observe its own rules. It cannot suspend its rules, or except a case from its operation.

2. Undecided Cases Beyond the Reglementary Period.-- We find that the Sandiganbayan has several cases undecided beyond the reglementary period set by the statutes and its own rules, some as long as more than ten (10) years ago.

According to the compliance submitted by the Sandiganbayan, three hundred and forty one (341) cases were submitted for decision but were undecided as of September 15, 2000. A number of the cases were submitted for decision as far back as more than ten (10) years ago. As of September 15, 2000, the following cases43 had not been decided:44

The Sandiganbayan is a special court created "in an effort to maintain honesty and efficiency in the bureaucracy, weed out misfits and undesirables in the government and eventually stamp out graft and corruption."45 We have held consistently that a delay of three (3) years in deciding a single case is inexcusably long.46 We can not accept the excuses of Presiding Justice Sandiganbayan Francis E. Garchitorena that the court was reorganized in 1997; that the new justices had to undergo an orientation and that the Sandiganbayan relocated to its present premises which required the packing and crating of records; and that some boxes were still unopened.47

We likewise find unacceptable Presiding Justice Garchitorena's excuse that one case alone48 comprises more that fifty percent (50%) of the First Division's backlog and that the same has been set for promulgation on December 8, 2000.49 As we said, a delay in a single case cannot be tolerated, "para muestra, basta un boton." (for an example, one button suffices). It is admitted that there are several other cases submitted for decision as far back as ten (10) years ago that have remained undecided by the First Division, of which Justice Garchitorena is presiding justice and chairman. Indeed, there is even one case, which is a simple motion to withdraw the information filed by the prosecutor. This has remained unresolved for more than seven (7) years (since 1994).50The compliance submitted by the Sandiganbayan presiding justice incriminates him. The memorandum submitted by the Court Administrator likewise testifies to the unacceptable situation in the Sandiganbayan. Indeed,

there is a disparity in the reports submitted by the Sandiganbayan presiding justice and the OCA. According to the Court Administrator, the cases submitted for decision that were still pending promulgation51 before the five divisions of the Sandiganbayan are:52

We find that Presiding Justice Francis E. Garchitorena failed to devise an efficient recording and filing system to enable him to monitor the flow of cases and to manage their speedy and timely disposition. This is his duty on which he failed.53

Memorandum of the Court Administrator

On November 14, 2001, the Court required the Office of the Court Administrator54 to update its report.55

On November 16, 2001, OCA Consultant Pedro A. Ramirez (Justice, Court of Appeals, Retired) submitted a "compliance report" with the Court's order. The compliance report shows that to this day, several cases that were reported pending by the Sandiganbayan on September 26, 2000, and likewise reported undecided by the OCA on January 26, 2001, have not been decided/resolved. We quote the compliance report:56

Summary/Tally

Cases Assigned to Garchitorena, PJ. 9

Cases Assigned to Castaneda, J. 42

Cases Assigned to Ong, J. 5

Cases not yet assigned 73

Cases not accounted for or reported 9

Total 138

Summary/Tally

Cases Assigned to Illarde, J. 9

Cases Assigned to De Castro, J. 4

Cases not yet assigned 8

Others 18

Total 39

Summary/Tally

Cases Assigned to Badoy, J. *** 11

Cases Assigned to Estrada, J. 7

Cases Assigned to Chico-Nazario, J. 1

No report/Unaccounted For 1

Total 20

3. Applicability of SC Adm. Circular No. 10-94.-- Supreme Court Circular No. 10-94 applies to the Sandiganbayan.

Administrative Circular 10-9457 directs all trial judges to make a physical inventory of the cases in their dockets. The docket inventory procedure is as follows:58

"a. Every trial judge shall submit not later than the last week of February and the last week of August of each year a tabulation of all pending cases which shall indicate on a horizontal column the following data:

"1. Title of the case

"2. Date of Filing

"3. Date arraignment in criminal cases of Pre-trial in civil cases and

"4. Date of initial trial

"5. Date of last hearing

"6. Date submitted for Decision

"b. The tabulation shall end with a certification by the trial judge that he/she has personally undertaken an inventory of the pending cases in his/her court; that he/she has examined each case record and initialled the last page thereof. The judge shall indicate in his/her certification the date when inventory was conducted.

"c. The Tabulation and Certification shall be in the following form.

Docket Inventory for the Period

January __ to June ___, ___/July

To December ___, ___

(Indicate Period)

Court and Station ________

Presiding Judge ________

"CERTIFICATION:

"I hereby certify that on (Date/Dates___), I personally conducted a physical inventory of pending cases in the docket of this court, that I personally examined the records of each case and initialled the last page thereof, and I certify that the results of the inventory are correctly reflected in the above tabulation.

_________. _____________________ Presiding Judge"

Given the rationale behind the Administrative Circular, we hold that it is applicable to the Sandiganbayan with respect to cases within its original and appellate jurisdiction.

Mora Decidendi

We reiterate the admonition we issued in our resolution of October 10, 2000:59

"This Court has consistently impressed upon judges (which includes justices) to decide cases promptly and expeditiously on the principle that justice delayed is justice denied. Decision making is the primordial and most important duty of the member of the bench.60 Hence, judges are enjoined to decide cases with dispatch. Their failure to do so constitutes gross inefficiency61 that warrants disciplinary sanction, including fine,62 suspension63 and even dismissal.64 The rule particularly applies to justices of the Sandiganbayan. Delays in the disposition of cases erode the faith and confidence of our people in the judiciary, lower its standards, and bring it into disrepute.65 Delays cannot be sanctioned or tolerated especially in the anti-graft court, the showcase of the nation's determination to succeed in its war against graft (italics ours)."

In Yuchengco v. Republic,66 we urged the Sandiganbayan to promptly administer justice. We stated that the Sandiganbayan has the inherent power to amend and control its processes and orders to make them conformable to law and justice. The Sandiganbayan as the nation's anti-graft court must be the first to avert opportunities for graft, uphold the right of all persons to a speedy disposition of their cases and avert the precipitate loss of their rights.

Practice of Unloading Cases

According to the memorandum submitted by the OCA, there is a practice in the first and third divisions of the Sandiganbayan of unloading cases to other divisions despite the fact that these cases have been submitted for decision before them. We cite relevant portions of the memorandum:67

We suggest a review of the practice of unloading cases that greatly contributes to the backlog of undecided cases. When a case has been heard and tried before a division of the Sandiganbayan, it is ideal that the same division and no other must decide it as far as practicable.

We further note that several cases which were earlier reported as undecided by the Sandiganbayan and the OCA have been decided since the reports of September 26, 2000 and January 26, 2001. Nonetheless, the delay in deciding these cases is patent and merits reprobation. According to the compliance report submitted by the OCA on November 16, 2001, there are several cases decided way beyond the reglementary period prescribed by law, even assuming without granting, a reglementary period of twelve months from the time a case is submitted for decision.68

In a case brought before this Court, Presiding Justice Garchitorena admitted fault and that the fault is exclusively his own, in failing to decide the case, though submitted for decision as early as June 20, 1990.69 This case was not even included among pending cases in the Sandiganbayan report of September 26, 2000.

The following cases were decided, though beyond the prescribed period:

Relief of Presiding Justice

At this juncture, the Court cites the case of Canson v. Garchitorena.70 In that case, we admonished respondent Presiding Justice Francis E. Garchitorena. General Jewel F. Canson, Police Chief Superintendent, National Capital Region Command Director, complained of deliberate delayed action of the Presiding Justice on the transfer of Criminal Cases Nos. 23047-23057 to the Regional Trial Court of Quezon City, depriving complainant of his right to a just and speedy trial. Due to a finding of lack of bad faith on the part of respondent justice, we issued only a warning. However, the dispositive portion of the decision cautioned respondent justice that "a repetition of the same or similar act in the future shall be dealt with more severely."71

Presiding Justice Francis E. Garchitorena sits as the Chairman, First Division, with a backlog of cases pending decision. At least seventy-three cases have been unassigned for the writing of the extended opinion, though submitted for decision. It may be the thinking of the Presiding Justice, Sandiganbayan that an unassigned case is not counted in its backlog of undecided cases. This is not correct. It is the duty of the Presiding Justice and the Chairmen of divisions to assign the ponente as soon as the case is declared submitted for decision, if not earlier. If he fails to make the assignment, he shall be deemed to be the ponente.

The Constitution provides that a case shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.72 In Administrative Circular No. 28, dated July 3, 1989, the Supreme Court provided that "A case is considered submitted for decision upon the admission of the evidence of the parties at the termination of the trial. The ninety (90) days period for deciding the case shall commence to run from submission of the case for decision without memoranda; in case the court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the last memorandum or the expiration of the period to do so, whichever is earlier. Lack of transcript of stenographic notes shall not be a valid reason to interrupt or suspend the period for deciding the case unless the case was previously heard by another judge not the deciding judge in which case the latter shall have the full period of ninety (90)

days from the completion of the transcripts within which to decide the same."73 The designation of aponente to a case is not a difficult administrative task.

Administrative sanctions must be imposed. "Mora reprobatur in lege."74 Again, we reiterate the principle that decision-making is the most important of all judicial functions and responsibilities.75 In this area, Presiding Justice Francis E. Garchitorena, as the ponente assigned to the cases submitted for decision/resolution long ago, some as far back as more than ten (10) years ago, has been remiss constituting gross neglect of duty and inefficiency.76 As we said in Canson,77 unreasonable delay of a judge in resolving a case amounts to a denial of justice, bringing the Sandiganbayan into disrepute, eroding the public faith and confidence in the judiciary.78

Consequently, Presiding Justice Francis E. Garchitorena should be relieved of all trial and administrative work as Presiding Justice and as Chairman, First Division so that he can devote himself full time to decision-making until his backlog is cleared. He shall finish this assignment not later than six (6) months from the promulgation of this resolution.

We have, in cases where trial court judges failed to decide even a single case within the ninety (90) day period, imposed a fine ranging from five thousand pesos (P5,000.00) to the equivalent of their one month's salary.79According to the report of the Sandiganbayan, as of September 26, 2000, there were three hundred forty one (341) cases submitted for decision before its first division headed by the Presiding Justice. In the memorandum of the OCA, there were one hundred ninety eight (198) cases reported submitted for decision before the First Division.80 Even in the updated report, there are one hundred thirty eight (138) cases still undecided in the First Division.

In fact, Presiding Justice Francis E. Garchitorena admitted that he has a backlog.81 He claimed that one (1) case alone comprises fifty percent (50%) of the backlog. We find this claim exaggerated. We cannot accept that a backlog of three hundred forty one (341) cases in the First Division could be eliminated by the resolution of a single consolidated case of one hundred fifty six (156) counts. A consolidated case is considered only as one case. The cases referred to were consolidated as Criminal Case Nos. 9812-9967, People v. Corazon Gammad-Leaño, decided on December 8, 2000. What about the one hundred eighty five (185) cases that unfortunately remained undecided to this date? Worse, the motion for reconsideration of the decision in said cases, submitted as of January 11, 2001, has not been resolved to this date.82 The First Division has only thirty (30) days from submission to resolve the same. It is now ten (10) months from submission. The expediente and the motion were transmitted to the ponente, Presiding Justice Francis E. Garchitorena, on that date, but to this day the case remains unresolved.83 Unfortunately, even other divisions of the Sandiganbayan may be following his example.84

In the first report of the Court Administrator, he indicated a total of one hundred ninety five (195) criminal cases and three (3) civil cases, or a total of one hundred ninety eight (198) cases submitted for decision as of December 21, 2000.85 Almost a year later, as of November 16, 2001, there are still one hundred thirty eight (138) cases undecided submitted long ago. For almost one year, not one case was decided/resolved by the Presiding Justice himself.86

Directive

WHEREFORE, in view of all the foregoing, the Court resolves:

(1) To IMPOSE on Presiding Justice Francis E. Garchitorena a fine of twenty thousand pesos (P20,000.00), for inefficiency and gross neglect of duty.

(2) Effective December 1, 2001, to RELIEVE Presiding Justice Francis E. Garchitorena of his powers, functions and duties as the Presiding Justice, Sandiganbayan, and from presiding over the trial of cases as a justice and Chairman, First Division, so that he may DEVOTE himself exclusively to DECISION WRITING, until the backlog of cases assigned to him as well as cases not assigned to any ponente, of which he shall be deemed the ponente in the First Division, are finally decided. There shall be no unloading of cases to other divisions, or to the First Division inter se.

In the interim, Associate Justice Minita V. Chico-Nazario, as the most senior associate justice, shall TAKE OVER and exercise the powers, functions, and duties of the office of the Presiding Justice, Sandiganbayan, until further orders from this Court.

(3) To DIRECT Presiding Justice Francis E. Garchitorena and the associate justices of the Sandiganbayan to decide/resolve the undecided cases submitted for decision as of this date, within three (3) months from their submission, and to resolve motions for new trial or reconsiderations and petitions for review within thirty (30) days from their submission. With respect to the backlog of cases, as hereinabove enumerated, the Sandiganbayan shall decide/resolve all pending cases including incidents therein within six (6) months from notice of this resolution.

(4) To ORDER the Sandiganbayan to comply with Supreme Court Administrative Circular 10-94, effective immediately.

(5) To DIRECT the Sandiganbayan en banc to adopt not later than December 31, 2001 internal rules to govern the allotment of cases among the divisions, the rotation of justices among them and other matters leading to the internal operation of the court, and thereafter to submit the said internal rules to the Supreme Court for its approval.87

This directive is immediately executory.

SO ORDERED

The Judicial and Bar Council Art 8 Sec 8 and 9

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.

Section 9.

The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees preferred by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issued the appointment within ninety days from the submission of the list.

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner, vs.JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.

R E S O L U T I O N

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez (petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential successor. In his initiatory pleading, petitioner asked the Court to determine 1] 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.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined 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.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating 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 Constitution11 and the 1935 Constitution12 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.13

Then, under the 1973 Constitution,14 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.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities,15 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 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.

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.16 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.1âwphi1 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.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the petition on the following grounds: 1] that allowing only one representative from Congress in the JBC would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make the proper adjustment when there was a shift from unilateralism to bicameralism was a plain oversight; 3] that two representatives from Congress would not subvert the intention of the Framers to insulate the JBC from political partisanship;

and 4] that the rationale of the Court in declaring a seven-member composition would provide a solution should there be a stalemate is not exactly correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the principal issues covered by the first and second grounds for lack of merit. Significantly, the conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of government are established, limited and defined and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.19 The Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the principles and the framework upon which government and society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify constitutional construction. As stated in the July 17, 2012 Decision, 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. Had the intention been otherwise, the Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the Congress, voting separately."20Another is Section 8 thereof which requires the nominee to replace the Vice-President to be confirmed "by a majority of all the Members of both Houses of the Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may be revoked or continued by the Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to their decision to shift to a bicameral form of the legislature, is not persuasive

enough. Respondents cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the Framers were not keen on adjusting the provision on congressional representation in the JBC because it was not in the exercise of its primary function – to legislate. JBC was created to support the executive power to appoint, and Congress, as one whole body, was merely assigned a contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2) Houses. The need to recognize the existence and the role of each House is essential considering that the Constitution employs precise language in laying down the functions which particular House plays, regardless of whether the two Houses consummate an official act by voting jointly or separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each House must be acknowledged and recognized considering the interplay between these two Houses. In all these instances, each House is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their participation in the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Rather, in the creation of the 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), not eight. 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.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them."

Further, 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.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single representation of Congress in the JBC in order to respect and give the right meaning to the above-quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant, submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: 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. (Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7) representatives coming from different sectors. From the enumeration it is patent that each category of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a former JBC consultant, is worth reiterating.31 Thus:

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." xxx 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. xxx 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.

x x x

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 co-equal branch in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent

powers requires the Senate and the 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. [Emphases and underscoring supplied]

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.

It is also an error for respondents to argue that the President, in effect, has more influence over the JBC simply because all of the regular members of the JBC are his appointees. The principle of checks and balances is still safeguarded because the appointment of all the regular members of the JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted, simply because it was only questioned for the first time through the present action, deserves scant consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or laches, because once an act is considered as an infringement of the Constitution it is void from the very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine of operative facts, actions previous to the declaration of

unconstitutionality are legally recognized. They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct action of the Filipino people, it cannot correct what respondents perceive as a mistake in its mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution, read into the law something that is contrary to its express provisions and justify the same as correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a reasonable certainty that a particular person, object or thing has been omitted from a legislative enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the omission even though the omission may have resulted from inadvertence or because the case in question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature would have supplied had its attention been called to the omission, as that would be judicial legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In cases like this, no amount of practical logic or convenience can convince the Court to perform either an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope of congressional representation in the JBC is tantamount to the inclusion of a subject matter which was not included in the provision as enacted. True to its constitutional mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED

Chavez vs JBC

GR no. 202242 April 16 2013

Facts: The case is a motion for reconsideration filed by the JBC in a prior decision rendered July 17, 2012 that JBC’s action of allowing more than one member of the congress to represent the JBC to be unconstitutional Respondent contends that the phrase “ a representative of congress” refers that both houses of congress should have one representative each, and that these two houses are permanent and mandatory components of “congress” as part of the bicameral system of legislature. Both houses have their respective powers in performance of their duties. Art VIII Sec 8 of the constitution provides for the component of the JBC to be 7 members only with only one representative from congress.

Issue: W/N the JBC’s practice of having members from the Senate and the House of Representatives to be unconstitutional as provided in Art VIII Sec 8 of the constitution.

Held: The practice is unconstitutional; the court held that the phrase “a representative of congress” should be construed as to having only one representative that would come from either house, not both. That the framers of the constitution only intended for one seat of the JBC to be allotted for the legislative. The motion was denied

G.R. No. 213181 August 19, 2014

FRANCIS H. JARDELEZA Petitioner, vs.CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

D E C I S I O N

MENDOZA, J.:

Once again, the Couii is faced with a controversy involving the acts of an independent body, which is considered as a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time that the Court is called upon to settle legal questions surrounding the JBC's

exercise of its constitutional mandate. In De Castro v. JBC,1the Court laid to rest issues such as the duty of the JBC to recommend prospective nominees for the position of Chief Justice vis-à-vis the appointing power of the President, the period within which the same may be exercised, and the ban on midnight appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court provided an extensive discourse on constitutional intent as to the JBC’s composition and membership.

This time, however, the selection and nomination process actually undertaken by the JBC is being challenged for being constitutionally infirm. The heart of the debate lies not only on the very soundness and validity of the application of JBC rules but also the extent of its discretionary power. More significantly, this case of first impression impugns the end-result of its acts - the shortlistfrom which the President appoints a deserving addition to the Highest Tribunal of the land.

To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief Justice herself, was being impleaded as party respondent.

The Facts

The present case finds its genesis from the compulsory retirement of Associate Justice Roberto Abad (Associate Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in accordance with its rules,3 the JBC announced the opening for application or recommendation for the said vacated position.

On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the Philippines nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of the Republic, for the said position. Upon acceptance of the nomination, Jardeleza was included in the names of candidates, as well as in the schedule of public interviews. On May 29, 2014, Jardeleza was interviewed by the JBC.

It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received telephone callsfrom former Court of Appeals Associate Justice and incumbent JBC member, Aurora Santiago Lagman (Justice Lagman), who informed him that during the meetings held on June 5 and 16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice Sereno),manifested that she would be invoking Section 2, Rule 10 of JBC-0094 against him. Jardeleza was then directed to "make himself available" before the JBC on June 30, 2014, during which he would be informed of the objections to his integrity.

Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise of itsconstitutional power of supervision over the JBC, issue an order: 1) directing the JBC to give him at least five (5) working days written notice of any hearing of the JBC to which he would be summoned; and the said notice to contain the sworn specifications of the charges against him by his oppositors, the sworn statements of supporting witnesses, if any, and copies of documents in support of the charges; and notice and sworn statements shall be made part of the public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting witnesses, if any, and the cross-examination to be conducted in public, under the same conditions that attend the publicinterviews held for all applicants; 3) directing the JBC to

reset the hearing scheduled on June 30, 2014 to another date; and 4) directing the JBC to disallow Chief Justice Sereno from participating in the voting on June 30,2014 or at any adjournment thereof where such vote would be taken for the nominees for the position vacated by Associate Justice Abad.

During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio T. Carpio (Associate Justice Carpio) appeared as a resource person to shed light on a classified legal memorandum (legal memorandum) that would clarify the objection to Jardeleza’s integrity as posed by Chief Justice Sereno. According to the JBC, Chief Justice Sereno questioned Jardeleza’s ability to discharge the duties of his office as shown in a confidential legal memorandum over his handling of an international arbitration case for the government.

Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice Secretary Leila M. De Lima (Secretary De Lima) informed him that Associate Justice Carpio appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno, characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at around 2:00o’clock in the afternoon.

Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against the integrity issues raised against him. He answered that he would defend himself provided that due process would be observed. Jardeleza specifically demanded that Chief Justice Sereno execute a sworn statement specifying her objectionsand that he be afforded the right to cross-examine her in a public hearing. He requested that the same directive should also be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr. also manifested that he wanted to hear for himself Jardeleza’s explanation on the matter. Jardeleza, however, refused as he would not be lulled intowaiving his rights. Jardeleza then put into record a written statement6 expressing his views on the situation and requested the JBC to defer its meeting considering that the Court en banc would meet the next day to act on his pending letter-petition. At this juncture, Jardeleza was excused.

Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of the proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to be included in the shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria Gracia M. Pulido Tan with five (5) votes, and Reynaldo B. Daway with four (4) votes.7

As mentioned in the petition, a newspaper article was later published in the online portal of the Philippine Daily Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that there were actually five (5) nominees who made it to the JBC shortlist, but one (1) nominee could not be included because of the invocation of Rule 10, Section 2 of the JBC rules.

In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of the JBC list of nominees to the Office of the President, "without prejudice to any remedy available in law and the rules that petitioner may still wish to pursue."8 The said

resolution was accompanied by an extensive Dissenting Opinion penned by Associate Justice Arturo D. Brion,9 expressing his respectful disagreement as to the position taken by the majority.

The Petition

Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in law, Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the Rules of Court with prayer for the issuance of a Temporary Restraining Order (TRO), seeking to compel the JBC to include him in the list ofnominees for Supreme Court Associate Justice viceAssociate Justice Abad, on the grounds that the JBC and Chief Justice Sereno acted in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding him, despite having garnered a sufficient number of votes to qualify for the position.

Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and its concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after the controversial JBC meeting. By the time that his letter-petition was scheduled for deliberation by the Court en bancon July 8, 2014, the disputedshortlist had already been transmitted to the Office of the President. He attributedthis belated action on his letter-petition to Chief Justice Sereno, whose action on such matters, especially those impressed withurgency, was discretionary.

An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges on the alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his constitutional right to due process; and 2) the JBC’s erroneous application, if not direct violation, of its own rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of his constitutional rights tothe acts of Chief Justice Sereno in raising objections against his integrity and the manner by which the JBC addressed this challenge to his application, resulting in his arbitrary exclusion from the list of nominees.

Jardeleza’s Position

For a better understanding of the above postulates proffered in the petition, the Court hereunder succinctlysummarizes Jardeleza’s arguments, as follows:

A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading up to and during the vote on the shortlist last June 30, 2014. When accusations against his integrity were made twice, ex parte, by Chief Justice Sereno, without informing him of the nature and cause thereof and without affording him an opportunity to be heard, Jardeleza was deprived of his right to due process. In turn, the JBC violated his right to due process when he was simply ordered to make himself available on the June 30, 2014 meeting and was told that the objections to his integrity would be made known to him on the same day. Apart from mere verbal notice (by way of a telephone call) of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on the accusations against him per se, he was deprived of an opportunity to mount a proper defense against it. Not only did the JBC fail to ventilate questions on his integrity during his public interview, he was also divested of his rights as an applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:

Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the ground of his moral fitness and, at its discretion, the Council may receive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer countervailing evidence.

Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given due course, unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In the latter case, the Council may direct a discreet investigation or require the applicant to comment thereon in writing or during the interview.

His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation conveyed to him that Associate Justice Carpio testified against him) and as to the nature of the very accusations against him caused him to suffer from the arbitrary action by the JBC and Chief Justice Sereno. The latter gravely abused her discretion when she acted as prosecutor, witness and judge,thereby violating the very essence of fair play and the Constitution itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief Justice to assume these roles, nor does it dispense with the need to honor petitioner’s right to due process."10

B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of nominees, in violation of its own rules. The "unanimity requirement" provided under Section 2, Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to an applicant’s integrity. Here, the lone objector constituted a part of the membership of the body set to vote. The lone objector could be completely capable oftaking hostage the entire voting process by the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of the rule would allow a situation where all thata member has to do to veto other votes, including majority votes, would be to object to the qualification of a candidate, without need for factual basis.

C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include Jardeleza in the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for appointment to a judicial position requires the affirmative vote of at least a majority of all members of the JBC. The JBC cannot disregard its own rules. Considering that Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is that a majority of the members of the JBC found him to be qualified for the position of Associate Justice.

D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s constitutional power to appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed the President’s choices. Simply put, the President would be constrained to choose from among four (4) nominees, when five (5) applicants rightfully qualified for the position. This limits the President to appoint a member of the Court from a list generated through a process tainted with patent constitutional violations and disregard for rules of justice and fair play. Until these constitutional infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate Justice viceAssociate Justice Abad.

Comment of the JBC

On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked proceduraland substantive bases that would warrant favorable action by the Court. For the JBC, certiorariis only available against a tribunal, a board or an officer exercising judicial or quasijudicial functions.11 The JBC, in its exercise of its mandate to recommend appointees to the Judiciary, does not exercise any of these functions. In a pending case,12 Jardeleza himself, as one of the lawyers for the government, argued in this wise: Certioraricannot issue against the JBC in the implementation of its policies.

In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a discretionary act. For it to prosper, a petition for mandamus must, among other things, show that the petitioner has a clear legal right to the act demanded. In Jardeleza’s case, there is no legal right to be included in the list of nominees for judicial vacancies. Possession of the constitutional and statutory qualifications for appointment to the Judiciary may not be used to legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s inclusion in the shortlist is strictly within the discretion of the JBC.

Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process. The JBC reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a question on his integrity based on the way he handled a very important case for the government. Jardeleza and Justice Lagman spoke briefly about the case and his general explanation on how he handled the same. Secretary De Lima likewise informed him about the content of the impending objection against his application. On these occasions, Jardeleza agreed to explain himself. Come the June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against him,as he chose to deliver a statement, which, in essence, requested that his accuser and her witnesses file sworn statements so that he would know of the allegations against him, that he be allowed to cross-examine the witnesses;and that the procedure be done on record and in public.

In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of the JBC on the issues raised against him prior to the voting process. His request for a sworn statement and opportunity to cross-examine is not supported by a demandable right. The JBC is not a fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members are notconcerned with the determination of his guilt or innocence of the accusations against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use of the word "may." Even the conduct of a hearing to determine the veracity of an opposition is discretionary on the JBC. Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition, the JBC would not call a hearing in order to avoid undue delay of the selection process. Each member of the JBC relies on his or her own appreciation of the circumstances and qualifications of applicants.

The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is included in the shortlist when he or she obtains an affirmative vote of at least a majority of all the members of the JBC. When Section 2, Rule 10 of JBC-009,however, is invoked because an applicant’s integrity is challenged, a unanimous vote is required. Thus, when Chief Justice Sereno invoked the saidprovision, Jardeleza needed the affirmative vote of all the JBC members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against Jardeleza was not counted. Even then, he needed the votes of the five(5) remaining

members. He only got four (4) affirmative votes. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who gotfour (4) affirmative votes, was included in the shortlist because his integrity was not challenged. As to him, the "majority rule" was considered applicable.

Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General. Despiteclaiming a prefatory appearance in propria persona, all pleadings filed with the Court were signed in his official capacity. In effect, he sued the respondents to pursue a purely private interest while retaining the office of the Solicitor General. By suing the very parties he was tasked by law to defend, Jardeleza knowingly placed himself in a situation where his personal interests collided against his public duties, in clear violation of the Code of Professional Responsibility and Code of Professional Ethics. Moreover, the respondents are all public officials being sued in their official capacity. By retaining his title as Solicitor General, and suing in the said capacity, Jardeleza filed a suit against his own clients, being the legal defender of the government and its officers. This runs contrary to the fiduciary relationship sharedby a lawyer and his client.

In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the constitutional period within which a vacancy in the Court must be filled. As things now stand, the President has until August 20, 2014 to exercise his appointment power which cannot be restrained by a TRO or an injunctive suit.

Comment of the Executive Secretary

In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting threshold in cases where the integrity of an applicant is challenged. It is his position that the subject JBC rule impairs the body’s collegial character, which essentially operates on the basis of majority rule. The application of Section 2, Rule 10 of JBC-009 gives rise to a situation where all that a member needs to do, in order to disqualify an applicant who may well have already obtained a majority vote, is to object to his integrity. In effect, a member who invokes the said provision is given a veto powerthat undermines the equal and full participation of the other members in the nomination process. A lone objector may then override the will ofthe majority, rendering illusory, the collegial nature of the JBC and the very purpose for which it was created— to shield the appointment process from political maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not allow an applicant any meaningful opportunity to refute the challenges to his integrity. While other provisions of the JBC rules provide mechanisms enabling an applicant to comment on an opposition filed against him, the subject rule does not afford the same opportunity. In this case, Jardeleza’s allegations as to the events which transpired on June 30, 2014 obviously show that he was neither informed ofthe accusations against him nor given the chance to muster a defense thereto.

The Executive Secretary then offered a supposition: granting that the subject provision is held to be constitutional, the "unanimity rule" would only be operative when the objector is not a member of the JBC. It is only in this scenario where the voting ofthe body would not be rendered inconsequential. In the event that a JBC member raised the objection, what should

have been applied is the general rule of a majority vote, where any JBC member retains their respective reservations to an application with a negative vote. Corollary thereto, the unconstitutionality of the said rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the President.

Other pleadings

On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its Comment. He submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten minutes prior to the closing of business, the Court received the Supplemental Comment-Reply of the JBC, this time with the attached minutes of the proceedings that led to the filing of the petition,and a detailed "Statementof the Chief Justice on the Integrity Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s original Comment, as it was filed prior to the filing of the Supplemental Comment-Reply.

At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-intervention were filed. One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the position of the JBC.14

The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP Baguio-Benguet Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a complaint for disbarment against Jardeleza primarily for violations of the Code of Professional Responsibility for representing conflicting interests.15

Both motions for intervention weredenied considering that time was of the essence and their motions were merely reiterative of the positions of the JBC and were perceived to be dilatory. The complaint for disbarment, however, was re-docketed as a separate administrative case.

The Issues

Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the resolution of one issue would necessarily affect the conclusion as to the others, the Court opts to narrow down the questions to the very source of the discord - the correct application of Section 2, Rule 10 JBC-009 and its effects, if any, on the substantive rights of applicants.

The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its application. It is only from the comment of the Executive Secretary where the possible unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach dictatesthat the Court must confront the source of the bleeding from which the gaping wound presented to the Court suffers.

The issues for resolution are:

I.

WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO THE SUBJECT PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A TEMPORARY RESTRAINING ORDER).

II

WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR CHALLENGES ON INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-009.

II.

WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC PROCEEDINGS IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS RAISED.

III.

WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF NOMINEES SUBMITTED TO THE PRESIDENT.

The Court’s Ruling

I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case

A - The Court’s Power of Supervision over the JBC

Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was given supervisory authority over it. Section 8 reads:

Section 8.

A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed 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. [Emphasis supplied]

As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the power of oversight, or the authority to see that subordinate officers perform their duties.It ensures that the laws and the rules governing the conduct of a government entity are observed and complied with. Supervising officials see to it that rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules are followed.16

Based on this, the supervisory authority of the Court over the JBC covers the overseeing of compliance with its rules. In this case, Jardeleza’s principal allegations in his petition merit the exercise of this supervisory authority.

B- Availability of the Remedy of Mandamus

The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel the performance, when refused, of a ministerial duty, but not to compel the performance of a discretionary duty. Mandamuswill not issue to control or review the exercise of discretion of a public officer where the law imposes upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is required to act. It is his judgment that is to be exercised and not that of the court.17 There is no question that the JBC’s duty to nominate is discretionary and it may not becompelled to do something.

C- Availability of the Remedy of Certiorari

Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or quasi-judicial functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a tribunal exercising judicial or quasi-judicial function. "Judicial functions are exercised by a body or officer clothed with authority to determine what the law is and what the legal rights of the parties are with respect to the matter in controversy. Quasijudicial function is a term that applies to the action or discretion of public administrative officers or bodies given the authority to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action using discretion of a judicial nature."18 It asserts that in the performance of its function of recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial functions. Hence, the resort tosuch remedy to question its actions is improper.

In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was negated by the invocation of the "unanimity rule" on integrity in violation of his right to due process guaranteed not only by the Constitution but by the Council’s own rules. For said reason, the Court is of the position that it can exercise the expanded judicial power of review vestedupon it by the 1987 Constitution. Thus:

Article VIII.

Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any branch or instrumentality of the government on the ground of grave abuse of discretion

amounting to lack or excess of jurisdiction by any branch orinstrumentality of the government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.19

In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find passivity as an alternative. The impassemust be overcome.

II – Substantial Issues

Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged

The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration that"[a] member of the judiciary must be a person of proven competence, integrity, probity, and independence." To ensure the fulfillment of these standards in every member of the Judiciary, the JBC has been tasked toscreen aspiring judges and justices, among others, making certain that the nominees submitted to the President are all qualified and suitably best for appointment. In this way, the appointing process itself is shieldedfrom the possibility of extending judicial appointment to the undeserving and mediocre and, more importantly, to the ineligible or disqualified.

In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of JBC-009, that qualifications such as "competence, integrity, probity and independence are not easily determinable as they are developed and nurtured through the years." Additionally, "it is not possible or advisable to lay down iron-clad rules to determine the fitness of those who aspire to become a Justice, Judge, Ombudsman or Deputy Ombudsman." Given this realistic situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and principles." A set of uniform criteria had to be established in the ascertainment of "whether one meets the minimum constitutional qualifications and possesses qualities of mind and heart expected of him" and his office. Likewise for the sake oftransparency of its proceedings, the JBC had put these criteria in writing, now in the form of JBC-009. True enough, guidelines have been set inthe determination of competence,"20 "probity and independence,"21 "soundness of physical and mental condition,22 and "integrity."23

As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-009, "integrity" is closely related to, or if not, approximately equated to an applicant’s good reputation for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and ethical standards. That is why proof of an applicant’s reputation may be shown in certifications or testimonials from reputable government officials and non-governmental organizations and clearances from the courts, National Bureau of Investigation, and the police, among others. In fact, the JBC may even conduct a discreet background check and receive feedback from the public on the integrity, reputation and character of the applicant, the merits of which shall be verifiedand checked. As a qualification, the term is taken to refer to a virtue, such that, "integrity is the quality of person’s character."24

The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing the "unanimity rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10 of JBC-009 provides:

SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the Members of the Council must be obtained for the favorable consideration of his nomination.

A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement is absolute in cases where the integrity of an applicant is questioned. Simply put, when an integrity question arises, the voting requirement for his or her inclusion as a nominee to a judicial post becomes "unanimous" instead of the "majority vote" required in the preceding section.25 Considering that JBC-009 employs the term "integrity" as an essential qualification for appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the unanimous vote of all the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009 envisions only a situation where an applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into operation when the moral character of a person is put in issue. It finds no application where the question is essentially unrelated to an applicant’s moral uprightness.

Examining the "questions of integrity" made against Jardeleza

The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s case.

The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during the June 30, 2014 meeting, not only the question on his actuations in the handling of a case was called for explanation by the Chief Justice, but two other grounds as well tending to show his lack of integrity: a supposed extra-marital affair in the past and alleged acts of insider trading.26

Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule 10 of JBC-009 was grounded on Jardeleza’s "inability to discharge the duties of his office" as shown in a legal memorandum related to Jardeleza’s manner of representing the government in a legal dispute. The records bear that the "unanimity rule" was initially invoked by Chief Justice Sereno during the JBC meeting held on June 5, 2014, where she expressed her position that Jardeleza did not possess the integrity required tobe a member of the Court.27 In the same meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen manner of framing the government’s position in a case and how this could have been detrimental to the national interest.

In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity were couched in general terms. The particulars thereof were only supplied to the Court in the JBC’s Supplemental Comment-Reply. Apparently, the JBC acceded to Jardeleza’s demand to make the accusations against him public. At the outset, the JBC declined to raise the fine points of the integrity question in its original Comment due to its significant bearing on the country’s foreign relations and national security. At any rate, the Court restrains itself from delving into the details thereof in this disposition. The confidential nature of the

document cited therein, which requires the observance of utmost prudence, preclude a discussion that may possibly affect the country’s position in a pending dispute.

Be that as it may, the Court has to resolve the standing questions: Does the original invocation of Section 2, Rule 10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a specific legal strategy in the handling of a case bring forth a relevant and logical challenge against his moral character? Does the "unanimity rule" apply in cases where the main point of contention is the professional judgment sans charges or implications of immoral or corrupt behavior?

The Court answers these questions in the negative.

While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not borne out ofa mere variance of legal opinion but by an "act of disloyalty" committed by Jardeleza in the handling of a case, the fact remains that the basis for her invocation of the rule was the "disagreement" in legal strategy as expressed by a group of international lawyers. The approach taken by Jardeleza in that case was opposed to that preferred by the legal team. For said reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule" on integrity traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was established linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or to betray the Constitution.

Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the legal community. A lawyer has complete discretion on whatlegal strategy to employ in a case entrusted to him28 provided that he lives up tohis duty to serve his client with competence and diligence, and that he exert his best efforts to protect the interests of his client within the bounds of the law. Consonantly, a lawyer is not an insurer of victory for clients he represents. An infallible grasp of legal principles and technique by a lawyer is a utopian ideal. Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal mind remains a legal tactic acceptable to some and deplorable to others. It has no direct bearing on his moral choices.

As shown in the minutes, the other JBC members expressed their reservations on whether the ground invoked by Chief Justice Sereno could be classified as a "question of integrity" under Section 2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat there was no clear indication that the tactic was a "brainchild" of Jardeleza, as it might have been a collective idea by the legal team which initially sought a different manner of presenting the country’s arguments, and there was no showing either of a corrupt purpose on his part.30 Even Chief Justice Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by extraneous promises.31 Besides, the President, who has the final say on the conduct of the country’s advocacy in the case, has given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the country’s trust and interest. While this point does notentail that only the President may challenge Jardeleza’s doubtful integrity, itis commonsensical to assume that he is in the best position to suspect a treacherous agenda. The records are bereft of any information that indicatesthis suspicion. In fact, the Comment of the Executive Secretary expressly prayed for Jardeleza’s inclusion in the disputed shortlist.

The Court notes the zeal shown by the Chief Justice regarding international cases, given her participation in the PIATCO case and the Belgian Dredging case. Her efforts inthe determination of Jardeleza’s professional background, while commendable, have not produced a patent demonstration of a connection betweenthe act complained of and his integrity as a person. Nonetheless, the Court cannot consider her invocation of Section 2, Rule 10 of JBC-009 as conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-009, there must be a showing that the act complained of is, at the least, linked to the moral character of the person and not to his judgment as a professional. What this disposition perceives, therefore, is the inapplicability of Section 2, Rule 10 of JBC-009 to the original ground of its invocation.

As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital affair and acts of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC. As can be gleaned from the minutes of the June 30, 2014 meeting, the inclusion of these issues had its origin from newspaper reports that the Chief Justice might raise issues of "immorality" against Jardeleza.32 The Chief Justice then deduced that the "immorality" issue referred to by the media might have been the incidents that could have transpired when Jardeleza was still the General Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the duty to "take every possible step to verify the qualification of the applicants," it might as well be clarified.33

Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-009? The Court nods in assent. These are valid issues.

This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which centered onJardeleza’s stance on the tactical approach in pursuing the case for the government, the claims of an illicit relationship and acts of insider trading bear a candid relation to his moral character. Jurisprudence34 is replete with cases where a lawyer’s deliberate participation in extra-marital affairs was considered as a disgraceful stain on one’s ethical and moral principles. The bottom line is that a lawyer who engages in extra-marital affairs is deemed to have failed to adhere to the exacting standards of morality and decency which every member of the Judiciary is expected to observe. In fact, even relationships which have never gone physical or intimate could still be subject to charges of immorality, when a lawyer, who is married, admits to having a relationship which was more than professional, more than acquaintanceship, more than friendly.35 As the Court has held: Immorality has not been confined to sexual matters, but includes conduct inconsistentwith rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to opinions of respectable members of the communityand an inconsiderate attitude toward good order and public welfare.36 Moral character is not a subjective term but one that corresponds to objective reality.37 To have a good moral character, a person must have the personal characteristic ofbeing good. It is not enough that he or she has a good reputation, that is, the opinion generally entertained about a person or the estimate in which he or she is held by the public in the place where she is known.38 Hence, lawyers are at all times subject to the watchful public eye and community approbation.39

The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values, self-control and on the whole, sense of honor, not only because it is a bold disregard of

the sanctity of marriage and of the law, but because it erodes the public’s confidence in the Judiciary. This is no longer a matter of an honest lapse in judgment but a dissolute exhibition of disrespect toward sacredvows taken before God and the law.

On the other hand, insider trading is an offense that assaults the integrity of our vital securities market.40Manipulative devices and deceptive practices, including insider trading, throw a monkey wrench right into the heart of the securities industry. Whensomeone trades inthe market with unfair advantage in the form of highly valuable secret inside information, all other participants are defrauded. All of the mechanisms become worthless. Given enough of stock marketscandals coupled with the related loss of faith in the market, such abuses could presage a severe drain of capital. And investors would eventuallyfeel more secure with their money invested elsewhere.41 In its barest essence, insider trading involves the trading of securities based on knowledge of material information not disclosed to the public at the time. Clearly, an allegation of insider trading involves the propensity of a person toengage in fraudulent activities that may speak of his moral character.

These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of JBC-009. They fall within the ambit of "questions on integrity." Hence, the "unanimity rule" may come into operation as the subject provision is worded.

The Availability of Due Process in the

Proceedings of the JBC

In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the accusations against him in writing; 2] he was not furnished the basis of the accusations, that is, "a very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of heeding his request for an opportunity to defend himself, the JBC considered his refusal to explain, during the June 30, 2014 meeting, as a waiver of his right to answer the unspecified allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections 3 and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides for a 10-day period from the publication of the list of candidates within which any complaint or opposition against a candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and oppositions to be in writing and under oath, copies of which shall be furnished the candidate in order for him to file his comment within five (5) days from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and sequential series of steps in securing a candidate’s right to due process.

The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in the fulfillment of its duty to recommend. The JBC, as a body, is not required by law to hold hearings on the qualifications of the nominees. The process by which an objection is made based on Section 2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact-finding, for it does not aim to determine guilt or innocence akin to a criminal or administrative offense but toascertain the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the application of rules of procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light on the objections against him. During the June

30, 2014 meeting, he did not address the issues, but instead chose totread on his view that the Chief Justice had unjustifiably become his accuser, prosecutor and judge.

The crux of the issue is on the availability of the right to due process in JBC proceedings. After a tedious review of the parties’ respective arguments, the Court concludes that the right to due process is available and thereby demandable asa matter of right.

The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are distinct from criminal proceedings where the finding of guilt or innocence of the accused is sine qua non. The JBC’s constitutional duty to recommend qualified nominees to the President cannot be compared to the duty of the courts of law to determine the commission of an offense and ascribe the same to an accused, consistent with established rules on evidence. Even the quantum ofevidence required in criminal cases is far from the discretion accorded to the JBC.

The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s access tothe rights afforded under the due process clause is discretionary on the part of the JBC. While the facets of criminal42 and administrative43 due process are not strictly applicable to JBC proceedings, their peculiarity is insufficient to justify the conclusion that due process is not demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he presents proof of his scholastic records, work experience and laudable citations. His goal is to establish that he is qualified for the office applied for. The JBC then takes every possible step to verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified for nomination. It ascertains the factors which entitle an applicant to become a part of the roster from which the President appoints.

The fact that a proceeding is sui generisand is impressed with discretion, however, does not automatically denigrate an applicant’s entitlement to due process. It is well-established in jurisprudence that disciplinary proceedings against lawyers are sui generisin that they are neither purely civil nor purely criminal; they involve investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit.44 Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to accountfor his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who, by their misconduct, have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can be no occasion to speak of a complainant or a prosecutor.45 On the whole, disciplinary proceedings are actually aimed to verifyand finally determine, if a lawyer charged is still qualifiedto benefit from the rights and privileges that membership in the legal profession evoke.

Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing. The Court subscribes to the view that in cases where an objection to an applicant’s qualifications is raised, the observance of due process neither negates nor renders illusory the fulfillment of the duty of JBC torecommend. This holding is not an encroachment on its

discretion in the nomination process. Actually, its adherence to the precepts of due process supports and enriches the exercise of its discretion. When an applicant, who vehemently denies the truth of the objections, is afforded the chance to protest, the JBC is presented with a clearer understanding of the situation it faces, thereby guarding the body from making an unsound and capriciousassessment of information brought before it. The JBC is not expected to strictly apply the rules of evidence in its assessment of an objection against an applicant. Just the same, to hear the side of the person challenged complies with the dictates of fairness for the only test that an exercise of discretion must surmount is that of soundness.

A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to examine its current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010. The former provides the following provisions pertinent to this case:

SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards. For this purpose, the applicant shall submit to the Council certifications or testimonials thereof from reputable government officials and non-governmental organizations, and clearances from the courts, National Bureau of Investigation, police, and from such other agencies as the Council may require.

SECTION 2. Background check. - The Council mayorder a discreet background check on the integrity, reputation and character of the applicant, and receive feedback thereon from the public, which it shall check or verify to validate the merits thereof.

SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on groundof his moral fitness and, at its discretion, the Council mayreceive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer countervailing evidence.

SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not begiven due course, unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In the latter case, the Council may either direct a discreet investigation or require the applicant to comment thereon in writing or during the interview. [Emphases Supplied]

While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to hold that the subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and Bar Council," JBC-010 recognizes the needfor transparency and public awareness of JBC proceedings. In pursuance thereof, JBC-010 was crafted in this wise:

SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet prima facie the qualifications for the positionunder consideration. For this purpose, it shall prepare a long list of candidates who prima facieappear to have all the qualifications.

The Secretary of the Council shall then cause to be published in two (2) newspapers of general circulation a notice of the long list of candidates in alphabetical order.

The notice shall inform the public that any complaint or opposition against a candidate may be filed with the Secretary within ten (10) days thereof.

SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies, together with its supporting annexes. It shall strictly relate to the qualifications of the candidate or lack thereof, as provided for in the Constitution, statutes, and the Rules of the Judicial and Bar Council, as well as resolutions or regulations promulgated by it.

The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against him. The candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or opposition, if he so desires.

SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to consider the qualification of the long list of candidates and the complaint or opposition against them, if any. The Council may, on its own, conduct a discreet investigation of the background of the candidates.

On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the shorter list of candidates whom it desires to interview for its further consideration.

SECTION 4.The Secretary of the Council shall again cause to be published the dates of the interview of candidates in the shorter list in two (2) newspapers of general circulation. It shall likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.

The candidates, as well as their oppositors, shall be separately notified of the dateand place of the interview.

SECTION 5.The interviews shall be conducted in public. During the interview, only the members ofthe Council can ask questions to the candidate. Among other things, the candidate can be made to explain the complaint or opposition against him.

SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session for the final deliberation on the short list of candidates which shall be sent to the Office of the President as a basis for the exercise of the Presidential power of appointment. [Emphases supplied]

Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of JBC-009 are merely directory in nature as can be gleaned from the use of the word "may." Thus, the conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the part of the JBC. Even the conduct of a hearing to determine the veracity of an opposition is discretionary for there are ways, besides a hearing, to ascertain the truth or falsity of allegations. Succinctly, this argument suggests that the JBC has the discretion to hold or not to hold a hearing when an objection to an applicant’s integrity is raised and that it may

resort to other means to accomplish its objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion, receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that shall be allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC of its discretion to recommend nominees nor proposes thatthe JBC conduct a full-blown trial when objections to an application are submitted. Still, it is unsound to say that, all together, the observance of due process is a part of JBC’s discretion when an opposition to an application is made of record. While it may so rely on "other means" such as character clearances, testimonials, and discreet investigation to aid it in forming a judgment of an applicant’s qualifications, the Court cannot accept a situation where JBC is given a full rein on the application of a fundamental right whenever a person’s integrity is put to question. In such cases, an attack on the person of the applicant necessitates his right to explain himself.

The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of JBC-010 unmistakably projects the JBC’s deference to the grave import of the right of the applicant to be informed and corollary thereto, the right to be heard. The provisions of JBC-010, per se, provide that: any complaint or opposition against a candidate may be filed with the Secretary within ten (10) days thereof; the complaint or opposition shall be in writing, under oath and in ten (10) legible copies; the Secretary of the Council shall furnish the candidate a copy of the complaint or opposition against him; the candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or opposition, if he so desires; and the candidate can be made to explain the complaint or opposition against him.

The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due process. While JBC-010 does not articulate a procedure that entails a trialtype hearing, it affords an applicant, who faces "any complaint or opposition," the right to answer the accusations against him. This constitutes the minimum requirements of due process.

Application to Jardeleza’s Case

Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza was deprived of his right to due process in the events leading up to, and during, the vote on the shortlist last June 30, 2014.

The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to answer the allegations against him. It underscores the fact that Jardeleza was asked to attend the June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the said meeting, Chief Justice Sereno informed him that in connection with his candidacy for the position of Associate Justice of the Supreme Court, the Council would like to propound questions on the following issues raised against him: 1] his actuations in handling an international arbitration case not compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged insider trading which led to the "show cause" order from the Philippine Stock Exchange.49

As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to be "lulled into waiving his rights." Instead, he manifested that his statement be put on record and informed the Council of the then pendency of his letter-petition with the Court en banc. When Chief Justice Sereno informed Jardeleza that the Council would want to hear from him on the three (3) issues against him,Jardeleza reasoned out that this was precisely the issue. He found it irregular that he was not being given the opportunity to be heard per the JBC rules.He asserted that a candidate must be given the opportunity to respond to the charges against him. He urged the Chief Justice to step down from her pedestal and translate the objections in writing. Towards the end of the meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be made part of the record. After Jardeleza was excused from the conference, Justice Lagman suggested that the voting be deferred, but the Chief Justice ruled that the Council had already completed the process required for the voting to proceed.

After careful calibration of the case, the Court has reached the determination that the application of the "unanimity rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.

As threshed out beforehand, due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself.50 Even as Jardeleza was verbally informed of the invocation of Section 2, Rule 10 of JBC-009 against him and was later asked to explain himself during the meeting, these circumstances still cannot expunge an immense perplexity that lingers in the mind of the Court. What is to become of the procedure laid down in JBC-010 if the same would be treated with indifference and disregard? To repeat, as its wording provides, any complaint or opposition against a candidate may be filed with the Secretary withinten (10) days from the publication of the notice and a list of candidates. Surely, this notice is all the more conspicuous to JBC members. Granting ex argumenti, that the 10-day period51 is only applicable to the public, excluding the JBC members themselves, this does not discount the fact that the invocation of the first ground in the June 5, 2014 meeting would have raised procedural issues. To be fair, several members of the Council expressed their concern and desire to hear out Jardeleza but the application of JBC-010 did not form part of the agenda then. It was only during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting that would be held on the same day when a resource person would shed light on the matter.

Assuming again that the classified nature of the ground impelled the Council to resort to oral notice instead of furnishing Jardeleza a written opposition, why did the JBC not take into account its authority to summon Jardeleza in confidence at an earlier time? Is not the Council empowered to "take every possible step to verify the qualification of the applicants?" It would not be amiss to state, at this point, that the confidential legal memorandum used in the invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to assume is his knowledge of the privileged nature thereof and the consequences of its indiscriminate release to the public. Had he been privately informed of the allegations against him based on the document and had he been ordered to respond thereto in the same manner, Jardeleza’s right to be informed and to explain himself would have been satisfied.

What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza to appear before the Council and to instantaneously provide those who are willing to listen an intelligent defense. Was he given the opportunity to do so? The answer is yes, in the context of his physical presence during the meeting. Was he given a reasonable chance to muster a defense? No, because he was merely asked to appear in a meeting where he would be, right then and there, subjected to an inquiry. It would all be too well to remember that the allegations of his extra-marital affair and acts of insider trading sprung up only during the June 30, 2014 meeting. While the said issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not given the idea that he should prepare to affirm or deny his past behavior. These circumstances preclude the very idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but toprovide the person a reasonable opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion becomes anidle and futile exercise.

Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be informed of the charges against him and his right to answer the same with vigorouscontention and active participation in the proceedings which would ultimately decide his aspiration to become a magistrate of this Court.

Consequences

To write finisto this controversy and in view of the realistic and practical fruition of the Court’s findings, the Court now declares its position on whether or not Jardeleza may be included in the shortlist, just in time when the period to appoint a member of the Court is about to end.

The conclusion of the Court is hinged on the following pivotal points:

1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as to Jardeleza’s legal strategy in handling a case for the government.

2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the contemplation of a "question on integrity" and would have warranted the application of the "unanimity rule," he was notafforded due process in its application.

3. The JBC, as the sole body empowered to evaluate applications for judicial posts, exercises full discretion on its power to recommend nomineesto the President. The sui generischaracter of JBC proceedings, however, is not a blanket authority to disregard the due process under JBC-010.

4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he was neither formally informed of the questions on his integrity nor was provided a reasonable opportunity to prepare his defense.

With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the shortlist submitted to the President for the vacated position of Associate Justice Abad. This

consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but from the violation by the JBC of its own rules of procedure and the basic tenets of due process. By no means does the Court intend to strike down the "unanimity rule" as it reflects the JBC’s policy and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a blind eye on the palpable defects in its implementation and the ensuing treatment that Jardeleza received before the Council. True, Jardeleza has no vested right to a nomination, but this does not prescind from the fact that the JBC failed to observe the minimum requirements of due process.

In criminal and administrative cases, the violation of a party’s right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.52 This rule may well be applied to the current situation for an opposing view submits to an undue relaxation of the Bill of Rights. To this, the Court shall not concede. Asthe branch of government tasked to guarantee that the protection of due process is available to an individual in proper cases, the Court finds the subject shortlist as tainted with a vice that it is assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed to have never come into operation in light of its erroneous application on the original ground against Jardeleza’s integrity. At the risk of being repetitive, the Court upholds the JBC’s discretion in the selection of nominees, but its application of the "unanimity rule" must be applied in conjunction with Section 2, Rule 10 of JBC-010 being invoked by Jardeleza. Having been able to secure four (4) out of six (6) votes, the only conclusion left to propound is that a majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for the position of Associate Justice and this grants him a rightful spot in the shortlist submitted to the President. Need to Revisit JBC’s

Internal Rules

In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of the view that the rules leave much to be desired and should be reviewed and revised. It appears that the provision on the "unanimity rule" is vagueand unfair and, therefore, can be misused or abused resulting in the deprivation of an applicant’s right to due process.

Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the collective will of a majority. This should be clarified. Any assertion by a member aftervoting seems to be unfair because it effectively gives him or her a veto power over the collective votes of the other members in view of the unanimous requirement. While an oppositor-member can recuse himself orherself, still the probability of annulling the majority vote ofthe Council is quite high.

Second, integrity as a ground has not been defined. While the initial impression is that it refers to the moral fiber of a candidate, it can be, as it has been, used to mean other things. Infact, the minutes of the JBC meetings n this case reflect the lack of consensus among the members as to its precise definition. Not having been defined or described, it is vague, nebulous and confusing. It must be distinctly specified and delineated.

Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be invoked only by an outsider as construed by the respondent Executive Secretary or also by a member?

Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they must meet the minimum requirements of due process. As always, an applicant should be given a reasonable opportunity and time to be heard on the charges against him or her, if there are any.

At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It need not be stressed that the rules to be adopted should be fair, reasonable, unambiguous and consistent with the minimum requirements of due process.

One final note.

The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment as a member of the Court.1âwphi1 In deference to the Constitution and his wisdom in the exercise of his appointing power, the President remains the ultimate judge of a candidate's worthiness.

WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General Francis I-I. Jardeleza is deemed INCLUDED in the shortlist submitted to the President for consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A. Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant to the observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to the approval of the Court.

This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this Decision.

SO ORDERED