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De facto justices and judges?


LIFE’S INSPIRATIONS: “… The Lord is not slow in keeping his promise, as some understand slowness. Instead he is patient with you, not wanting anyone to perish, but everyone to come to repentance…” (2 Peter 3:9, the Holy Bible).

DE FACTO JUSTICES AND JUDGES? Assuming that the appointments of everyone in the judiciary, from the Supreme Court down to the judges of municipal trial courts who were named to their positions since 2001, could be considered violative of the 1987 Constitution and hence are to be deemed null and void because of a defect in the membership of the Judicial and Bar Council (JBC), are they not to be treated as “de facto” officers just the same?

This is a question that Josef Leroi Garcia, a member of the Facebook group “Taga UP Diliman Ka Kung…” is raising, in reaction to our column dealing with the probable unconstitutionality of all judiciary appointments since 2001 on the ground that the composition of the JBC, with two representatives---instead of just one---from Congress, violated the Charter so that any and all recommendations and nominations made by it are without force and effect.

Garcia, apparently a lawyer---or a law student---chided me for having apparently forgotten the principles, in our course on public officers, on “de facto” officers, which, in effect, are saying that even if there is a defect in the appointment of any government official, his acts in relation to his office are nevertheless accorded validity.

RULE ON DE FACTO OFFICERS REVIEWED IN RYDER VS. US: Here is the reaction of Garcia, as submitted to the Facebook group, in Filipino: “Mukhang nakalimutan ni Batas ang principles on the effectivity and validity of actions of de facto and de jure officers sa public officers course. Hindi automatic na dahil mali yun composition ng isang body or may question sa color of title ng isang member ng collegial body eh automatic na null and void lahat ng actions ng body. Kaya siguro dinamay pa ang Diyos.”

Rough English translation: “It seems Batas forgot the principles on the effectivity and validity of actions of de facto and de jure officers on courses on public officers. It is not automatic that these actions are to be considered null and void, if there is a question about the title of a member of a collegial body. That is probably why he included even God.”

My response: “Thank God in the name of Jesus, but please read Ryder vs. US. Then you will know you don’t have to mock any reliance on God. Perhaps, we have read that God uses the lowly and the forgetful to shame the wise and `intelligence’---or something like that?

VALID UNLESS ANNULLED: Atty. Ray Fagutao of the Internet group “capizforum” also sent a reaction, also on the JBC issue: “28 June 2012. Atty. Mauricio, you have raised a serious legal point. With regard to the appointment of the members of the judiciary during the time of Chief Justice Davide, it can be argued that the same are de facto appointments or `under a color of title’ appointments. Thus, they are valid unless annulled.
“The appointment of the members of the judiciary must pass through two stages, the screening and the final phase. There is no dispute as to the latter. There is serious debate with regard the screening process especially the composition of the Judicial and Bar Council (JBC).

“The upside is: Why not give the judiciary a totally fresh face? Why not allow the President blanket authority to re-appoint the members of the judiciary who passed the defective composition of the JBC provided they again pass the legally constituted screening authority? Atty. Ray Fagutao.”

REACTIONS? Please call me at 0917 984 24 68, 0918 574 0193 or 0922 833 43 96. Email me at

by Atty. Batas Mauricio

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