MANILA, Philippines - JELAC, of course, is the newly created Judiciary, Legislative and Executive Advisory and Consultative Council. No sooner did it begin to function than concerns are being expressed about its wisdom if not about its constitutionality. The concern arises from the participation of the judiciary in the Council. Some have expressed the fear that it can compromise the independence of the judiciary in the regime of separation of powers. Should it really be a matter of serious concern?

Any discussion of the subject must begin with the nature of judicial power. Judicial power, as our Constitution puts it, ?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.?

Beyond this, the judiciary may not arrogate more, nor may it be given more.

The judiciary is sometimes called the ?least dangerous branch? because it has neither money, which the Legislature controls, nor arms, which the executive wields. But it has the power of law which the Constitution guards by separating the judiciary?s operation from Congress and Executive. It is this delicate separation that is causing concern.

Under our Constitution the judiciary as judiciary may not give advisory opinions whether to the President or to Congress. As judiciary, its language must have the force of law which must be obeyed. Advisory opinions do not command obedience. Giving advisory opinions can demean the judiciary.

It is true that individual justices sometimes give advisory opinions. But they do it on their own, and improperly. Neither they themselves nor the courts are bound by such opinion.

In the 1987 Constitution there is also a provision which says that the ?Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.?

In order that the needs of the judiciary can be effectively attended to by those who have the obligation to do so, the Constitution also says: ?The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary.? It is through this report that the President and Congress are made aware of the needs of the judicial system.

Against this background, what can be said about the Judiciary, Legislative and Executive Advisory and Consultative Council? Let us begin with its composition and purpose.

Based on the Memorandum of Agreement creating the Jelac, it shall be composed of nine members, with the President as the Chair, the Vice-President, the Senate President, the House Speaker, the Chief Justice, a Cabinet Secretary, a Senator, a House Member and one Justice.

As to function, it ?shall serve as the forum and venue for the representatives of the three branches of government to undertake measures on matters affecting the primacy of the rule of law, to identify the problems and issues, to formulate solutions and to implement the same.?

As worded, the functions seem to me to be closer to legislative and executive than to anything else. One therefore is necessarily led to wonder why the Chief Justice and a Justice should be there. But Sen. Francis Pangilinan, whose brainchild the Jelac is, is quick to explain that this is not the case at all. What is it then?

Pangilinan is quoted as saying, ?Firstly, the creation of the Jelac is not by law but by a memorandum of agreement. Hence, at any given time, any party to the agreement may send notice to the other parties if it desires to withdraw its participation from the council. The hands of the SC, therefore, are not tied to the Jelac should it deem it necessary to disengage because of legal or policy differences.?

Since government authority comes only from law and since Jelac, as Pangilinan admits, is not a creature of law, it has no legal authority. Why then should the Chief Justice lend the stature of his office to a body that has no legal authority?

Pangilinan adds that the Jelac was meant to be ad hoc in nature and that ?It is meant to fast-track the much needed reforms in the administration of justice by way of budgetary and other forms of support.?

There you have it! Fast-tracking the ?much needed reforms through budgetary and other forms of support? is a legislative and executive function.

The noble goal of Jelac, Pangilinan says, is ?to address serious problems that have plagued the judiciary and the administration of justice for decades. This requires new approaches, new methods and strategies.?

In so far as this is an admission that Congress and Executive have not done their job, I agree. But the only task of the Court should be to apprise the President and Congress of the needs of the judiciary through the annual report required by Article VIII, Section 16 of the Constitution.