2. Judicial and Bar Council

D. Appointments to the Judiciary

• Qualifications of Members
• Judicial and Bar Council
• Composition
• Powers

1987 CONST., art. VIII, sec. 7

> 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.

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 prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

Appointments upon recommendation of the Judicial and Bar Council

(does not require confirmation by the Commission on Appointments)

Members of the Supreme Court and all other courts [Section 9, Article VIII, 1987 Constitution]

Note: The appointment must be made 90 days from when the vacancy occurs [Section 4(1), Article VIII, 1987 Constitution]

For lower courts, appointments shall be issued within 90 days from submission of the list.

• Ombudsman and his deputies (one overall deputy and at least one each for Luzon, the Visayas, and Mindanao; a separate military deputy may be appointed) [Section 9, Article XI, 1987 Constitution]

JUDICIAL AND BAR COUNCIL

Composition (PHIL. CONST., art. VIII, § 8.)

• Chief Justice, as ex-officio chairman
• Secretary of Justice, as ex-officio member
• Representative of Congress, as ex-officio member
• Representative of the Integrated Bar
• A professor of law
• A retired member of the Supreme Court
• Private sector representative

Regular Members of the JBC

• The last four in the enumeration above are the regular members of the JBC.
• The President, with the consent of the Commission on Appointments, appoints regular members who serve for 4 years, in staggered terms. (PHIL. CONST., art. VIII, § 8(2).)
• They shall receive such emoluments as may be determined by the Supreme Court. (PHIL. CONST., art. VIII, § 8(4).)

Clerk of the Supreme Court – serves as the secretary ex officio of the Council and shall keep a record of its proceedings (PHIL. CONST., art. VIII, § 8(3).)

The JBC is composed of 7 members coming from different sectors. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that the Constitution is explicit that we have only “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. The lone representative of Congress is entitled to one full vote. This effectively disallows the scheme of splitting the said vote into half between two representatives of Congress. (Chavez v. JBC, G.R. No. 202242, April 16, 2013)

Thus, any inclusion of another member, whether with one whole vote or 1/2 of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. (Id.)

The JBC can still perform its mandated task of submitting the list of nominees to the President despite a vacancy in the position of Chief Justice or the ex-officio Chairman (as a result, for example, of impeachment). In such case, the most Senior Justice of this Court who is not an applicant for the position of Chief Justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings. (Dulay v. JBC, G.R. No. 202143, July 3, 2012)

The Supreme Court shall provide in its annual budget the appropriations for the Council. (PHIL. CONST., art. VIII, § 8(4)).

Rules on Appointments/Clustering of Nominees

• The President shall appoint Members of the Supreme Court and judges of lower courts from a list of at least three (3) nominees for each vacancy, as prepared by the JBC.
• No CA confirmation is needed for appointments to the Judiciary.
• Vacancies in SC should be filled within 90 days from the occurrence of the vacancy
• Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list.
• Midnight Appointments – Explicit prohibition against midnight appointments is already unnecessary due to the intervention of and screening made by Judicial Bar Council (JBC) (De Castro v. JBC, G.R. No. 191002, April 20, 2010)

The Supreme Court has supervision over the JBC, and this authority covers the overseeing of the JBC’s compliance with its own rules. (Jardeleza v. Sereno, G.R. No. 213181, Aug. 19, 2014)

The primary limitation to the JBC's exercise of discretion is that the nominee must possess the minimum qualifications required by the Constitution and the laws relative to the position. While the resolution of who to nominate as between two candidates of equal qualification cannot be dictated by this Court upon the JBC, such surrender of choice presupposes that whosoever is nominated is not otherwise disqualified. The question of whether or not the nominee possesses the requisite qualifications is determined based on facts and therefore does not depend on, nor call for, the exercise of discretion on the part of the nominating body. Thus, the nomination by the JBC is not accurately an exercise of policy or wisdom as to place the JBC's actions in the same category as political questions that the Court is barred from resolving. (Republic v. Sereno, G.R. No. 237428, May 11, 2018)

Mandamus will not lie to compel the JBC to select and recommend nominees for vacant judicial positions, which is a discretionary function. 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. (Villanueva v. JBC, G.R. No. 211833, April 7, 2015)

The clustering of nominees for the six vacancies in the Sandiganbayan by the JBC impaired the President's power to appoint members of the Judiciary and to determine the seniority of the newly appointed Sandiganbayan Associate Justices. The clustering by the JBC of nominees for simultaneous or closely successive vacancies in collegiate courts can actually be a device to favor or prejudice a particular nominee. A favored nominee can be included in a cluster with no other strong contender to ensure his/her appointment; or conversely, a nominee can be placed in a cluster with many strong contenders to minimize his/her chances of appointment. (Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016)

Qualifications

The “practice of law” is not confined to litigation. It means any activity in and out of the court, which requires the application of law, legal procedure, knowledge, training, and experience [Cayetano v. Monsod, G.R. No. 100113 (1991)].

Judicial and Bar Council (composition and powers)

Composition

• Ex-officio members [Section 8(1), Article VIII, 1987 Constitution]
• Chief Justice as ex-officio Chairman
• Secretary of Justice
• One representative of Congress
• Regular members [Section 8(1), Article VIII, 1987 Constitution]
• Representative of the Integrated Bar
• Professor of law
• Retired member of the SC
• Representative of private sector
• Secretary ex-officio [Section 8 (3), Article VIII, 1987 Constitution]

Clerk of Court of the Supreme Court, who shall keep a record of its proceedings; not a member of the JBC.

In the absence of the Chief Justice because of his impeachment, the most Senior Justice of the Supreme Court, who is not an applicant for Chief Justice, should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings, pursuant to Section 12 of Republic Act No. 296, or the Judiciary Act of 1948 [Famela Dulay v. Judicial and Bar Council, G.R. No. 202143 (2012)]

• Appointment, tenure, and salary

Ex-officio members

The position in the Council is good only while the person is the occupant of the office.

Only ONE representative from Congress:

Former practices of giving ½ vote or (more recently) 1 full vote each for the Chairmen of the House and Senate Committees on Justice is invalid. Any member of Congress, whether from the upper or lower house, is constitutionally empowered to represent the entire Congress.

The framers intended the JBC to be composed of 7 members only. Intent is for each co-equal branch of gov’t to have one representative. There is no dichotomy between Senate and HOR when Congress interacts with other branches. But the SC is not in a position to say who should sit. The lone representative from Congress is entitled to one full vote [Chavez v. JBC, G.R. No. 202242 (2012)].

Regular Members [Section 8(2), Article VIII, 1987 Constitution]

The regular members shall be appointed by the President with the consent of the Commission on Appointments. The term of the regular members is 4 years.

But the term of those initially appointed shall be staggered in the following way so as to create continuity in the council:

• IBP representative: 4 years
• Law professor: 3 years
• Retired justice: 2 years
• Private sector: 1 year