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[A.M. No. JBC-005.August 3, 1999]

IN RE:LETTER OF JBC MEMBER CEZAR C. PERALEJO

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG. 3, 1999.

A.M. No. JBC-005(In Re: Letter of JBC Member Cezar C. Peralejo claiming for retirement privileges of a justice of the Court of Appeals).

Submitted for consideration of this Court is a letter ¹ Letter dated September 1, 1997, addressed to the Court, Rollo, p. 40.of Judge Cezar C. Peralejo (ret.) claiming for retirement benefits of a justice of the Court of Appeals under Republic Act No. 910, as amended by Republic Act No. 5095, Section 4 of which provides:

"A retiring judge of a court of record or a city or municipal judge who is entitled to the benefits of any prior retirement gratuity act shall have the option to choose between the benefits in such Act and those herein provided for, and in such case he shall be entitled only to the benefits so chosen:Provided however, that a justice or judge of a court of record or city or municipal judge retired under any prior retirement Act and who is thereafter appointed to the Supreme Court, or to the Court of Appeals, or to the Court of Tax Appeals, or Juvenile and Domestic Relations, as the case may be, shall be entitled to the benefits of this Act on condition that, in case he has not fully refunded to the government that gratuity previously received by him, there shall be deducted from the amount payable to him under this act which monthly installments as are required in Section Six of Act numbered four thousand and fifty-one, as amended, until the gratuity already received by him shall have been �refunded in full."

Judge Peralejo claims that by operation of the doctrine of necessary implication, ² Letter to Atty. Adelaida Cabe-Baumann, dated March 8, 1999, pp. 52-54 .the benefits accorded to justices of the Supreme Court and the Court of Appeals, judges of the Court of Tax Appeals and the Juvenile and Domestic Relations Court, under Republic Act No. 910, as amended, may be extended to him as member of the Judicial and Bar Council.

The doctrine of necessary implication holds:

"No statute can be enacted that can provide all the details involved in its application.There is always an omission that may not meet a particular situation.What is thought, at the time of enactment, to be an all embracing legislation may be inadequate to provide for the unfolding events of the future. So called gaps in the law develop as construction used to fill in the gap is the doctrine of necessary implication.The doctrine states that what is implied in a statute is much a part thereof as that which is expressed.Every statute is understood by implication to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms.Ex necessitate legis.And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege.This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus." ³ Constitutional Law by Miriam Defensor-Santiago, p. 462.

By resolution ⁴ Rollo , Resolution, December 2, 1997.adopted on December 2, 1997, the Court referred the matter to the Court Administrator for recommendation.In a memorandum dated February 4, 1998, Court Administrator Alfredo L. Benipayo recommended that:

"Accordingly, it would seem that under the existing policies, JBC member Peralejo is entitled to a lump sum of his basic salary for one (1) year in consideration of his full term of service, which will expire in November of this year.

But if the Honorable Court should decide that JBC members enjoy not only the salary, but also the rank and privileges of an associate justice of the court of appeals, then JBC member Peralejo is entitled to the corresponding adjustment and upgrading of his retirement benefits under R.A. No. 910 as amended.The payment of his retirement benefits shall of course be subject to the usual clearance requirements and the reduction/refund of the difference between the gratuity previously received by him and the increased amount resulting from the adjustment." ⁵ Memorandum of Court Administrator Benipayo to Chief Justice Narvasa, dated February 4, 1998, Rollo, p. 43.

At issue is whether a JBC member has the salary, rank and privileges of a Court of Appeals justice and thereby entitled to the same retirement rights and benefits under Republic Act No. 910, as amended.

First, we consider the law.The Judicial and Bar Council is a creation of the Constitution. ⁶ Article VIII, Section 8(1), Constitution.On July 10, 1987, the President issued Executive Order No. 216, declaring the effectivity of the creation of the judicial and Bar Council as provided for in the 1987 Constitution.In Section 5 of the Executive Order, it provided that regular members of the Council shall receive such emoluments as determined by the Supreme Court.

By resolution adopted on June 26, 1997, the Supreme Court provided that:

"Pursuant to its authority to determine the emoluments of a regular member of the Judicial and Bar Council, the Court hereby resolves that said members shall, upon retirement, after serving the full term of his appointment be entitled to a lump sum payment of his basic salary for one year.Any regular member who has served less than his full term shall be entitled to two months salary for every year of service, or a fraction thereof, not less than six months being considered one full year, without prejudice to his applying for more benefits under applicable retirements laws." ⁷ Rollo , Resolution, dated June 26,1997, p.29.

Hence, the retirement scheme for members of the Judicial and Bar Council has been set forth in the above resolution.

However, Judge Peralejo is claiming retirement benefits under Republic Act No. 910, as amended by Republic Act No. 5095, on the thesis that a member of the JBC has the rank and privileges of a justice of the Court of Appeals.

Second, in fact, Judge Peralejo was compulsorily retired at age seventy as a regional trial judge on February 11, 1993, under Republic Act No. 910, as amended.At the time of his retirement, he had only ten (10) years and twenty-three (23) days of government service.

On November 30, 1994, the President nominated Judge Cezar C. Peralejo as member, Judicial and Bar Council, for a term of four (4) years.On January 5, 1995, the President extended to him an ad interim appointment.He assumed office on February 8, 1995.He now claims a total government service of twenty (20) years at the time his term of office as JBC member expired on July 9, 1998, entitled to the same retirement benefits as a justice of the Court of Appeals.

There is no law or ruling of the Court holding that regular JBC members have the rank and privileges of a justice of the Court of Appeals.Consequently, they can not avail themselves of the benefits of Republic Act No. 910, as amended.

Under the factual setting, we find the claim of Judge Peralejo to be without merit.

Republic Act No. 910, as amended, can not apply to his subsequent appointment as JBC member because, as aforesaid, a JBC member does not enjoy the rank and privileges of a justice of the Court of Appeals.On the other hand, as herein-above stated, by resolution adopted on June 26, 1997, the Court provided for retirement benefits of regular members of the Judicial and Bar Council.

IN VIEW WHEREOF, the Court DENIES the claim for retirement benefits of Judge Cezar C. Peralejo under Republic Act No. 910, as amended, as former member of the Judicial and Bar Council.He may, however, avail himself of the retirement benefits prescribed in the resolution of June 26, 1997.

This resolution is final.

SO ORDERED.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO

Clerk of Court

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