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[ VOL. I, July 10, 1986 ]
JOURNAL NO. 27
Thursday, July 10, 1986
CALL TO ORDER
At 3:10 p.m., the President of the Constitutional Commission, the Honorable Cecilia Muñoz Palma, called the session to order.
NATIONAL ANTHEM AND PRAYER
The National Anthem was sung followed by a prayer led by Sr. Christine Tan, to wit:
Good Father, we are so pressured and some- times tense. Show us how to keep a space in our hearts so that You will be able to show Yourself, and when You do show Yourself beyond reason and law, give w the simplicity to recognize You and to act accordingly.ROLL CALL
Amen.
Upon direction of the Chair, the Secretary-General of the Commission called the Roll and the following Members responded:
With 42 Members present, the Chair declared the presence of a quorum.
Abubakar, Y. R. Natividad, T. C. Alonto, A. D. Nieva, M. T. F. Aquino, F. S. Nolledo, J. N. Azcuna, A. S. Padilla, A. B. Bacani, T. C. Muñoz Palma, C. Bengzon, J. F. S. Quesada, M. L. M. Bernas, J. G. Rama, N. G. Rosario Braid, F. Regalado, F. D. De Castro, C. M. De los Reyes, R. F. Colayco, J. C. Rigos, C. A. Concepcion, R. R. Rodrigo, F. A. Davide, H. G. Romulo, R. J. F Foz, V. B. Sarmiento, R. V. Garcia, E. G. Suarez, J. E. Gascon, J. L. M. C. Sumulong, L. M. Guingona, S. V. C. Tadeo, J. S. L. Jamir, A. M. K. Tan, C. Laurel, J. B. Treñas, E. B. Lerum, E. R. Uka, L. L. Maambong, R. E. Villacorta, W. V. Monsod, C. S. Villegas, B. M.
Messrs. Bennagen and Ople appeared after the Roll Call.
Messrs. Brocka, Calderon and Rosales were absent.
Mr. Tingson officially notified the Constitutional Commission, through the Secretariat, of his absence.
READING AND APPROVAL OF THE JOURNAL
On motion of Mr. Rama, there being no objection, the reading of the Journal of the previous session was dispensed with and the said Journal was approved by the Body.
REFERENCE OF BUSINESS
On motion of Mr. Rama, there being no objection, the Body proceeded to the Reference of Business.
REFERRAL TO COMMITTEES OF RESOLUTIONS
Upon direction of the Chair, the Secretary-General read, on First Reading, the titles of the following proposed Resolutions which were, in turn, referred by the Chair to the Committees hereunder indicated:
Proposed Resolution No. 458, entitled:
RESOLUTION FIXING THE TERM OF THE INCUMBENT PRESIDENT AND VICE-PRESIDENTProposed Resolution No. 459, entitled:
Introduced by Honorable Ople, Maambong and Natividad
TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS
RESOLUTION STRENGTHENING THE SEPARATION BETWEEN CHURCH AND STATEProposed Resolution No. 460, entitled:
Introduced by Honorable Ople, Natividad, De los Reyes, Jr. and Maambong
TO THE COMMITTEE ON CONSTITUTIONAL COMMISSIONS AND AGENCIES
RESOLUTION PROVIDING FOR REPRESENTATION OF THE OPPOSITION IN THE CONSTITUTIONAL COMMISSIONSProposed Resolution No. 461, entitled:
Introduced by Honorable Maambong
TO THE COMMITTEE ON CONSTITUTIONAL COMMISSIONS AND AGENCIES
RESOLUTION TO INCORPORATE IN THE ARTICLE ON TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION REPEALING ALL LAWS, DECREES, PROCLAMATIONS, ORDERS, INSTRUCTIONS, RULES OR REGULATIONS WHICH ARE INCONSISTENT WITH THE FREEDOM CONSTITUTION AND THE NEW CONSTITUTION.Proposed Resolution No. 462, entitled:
Introduced by Honorable Davide, Jr.
TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS
RESOLUTION TO INCORPORATE IN THE ARTICLE ON THE TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION MANDATING THE OBJECTIVES AND PARAMETERS OF GOVERNMENT REORGANIZATIONProposed Resolution No. 463, entitled:
Introduced by Honorable Davide, Jr.
TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS
RESOLUTION TO INCORPORATE IN THE ARTICLE ON THE TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION ON URGENT MEASURES ON NATIONAL RECONSTRUCTION, RECOVERY AND RECONCILIATION TO WHICH THE FIRST NATIONAL ASSEMBLY MUST GIVE UTMOST PRIORITYProposed Resolution No. 464, entitled:
Introduced by Honorable Davide, Jr.
TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS
RESOLUTION TO INCORPORATE IN THE ARTICLE ON TRANSITORY PROVISIONS OF THE NEW CONSTITUTION PROVISIONS FIXING LIMITATION TO THE PERIOD WITHIN WHICH GOVERNMENT OFFICIALS AND EMPLOYEES MAY BE SEPARATED FROM THE SERVICE DUE TO THE REORGANIZATION OF THE GOVERNMENT, PROVIDING THE RULE ON SEPARATION AND MANDATING THE BENEFITS AND PRIVILEGES OF SEPARATED EMPLOYEESProposed Resolution No. 465, entitled:
Introduced by Honorable Davide, Jr.
TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY AND PROVISIONS
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION ON THE REPEAL OF ALL LAWS WHICH ARE INIMICAL AND OR TEND TO DEPRIVE THE RIGHTS OF INDIGENOUS ETHNIC MINORITIES OVER THEIR ANCESTRAL LANDSProposed Resolution No. 466, entitled:
Introduced by Honorable Bennagen
TO THE COMMITTEE ON HUMAN RESOURCES
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION FOR THE ADOPTION OF A MULTI-PARTY SYSTEMProposed Resolution No. 467, entitled:
Introduced by Honorable Garcia
TO THE COMMITTEE ON CONSTITUTIONAL COMMISSIONS AND AGENCIES
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION PROHIBITING: RELATIVES OF INCUMBENT LOCAL OFFICIALS WITHIN THE THIRD DEGREE OF CONSANGUINITY AFFINITY FROM RUNNING FOR THE POSITION BE VACATED BY THE INCUMBENT LOCAL OFFICIALProposed Resolution No. 471, entitled:
Introduced by Honorable Garcia
TO THE COMMITTEE ON CONSTITUTIONAL COMMISSIONS AND AGENCIES
RESOLUTION PROPOSING TO ADOPT IN THE CONSTITUTION THE RECOGNITION OF THE STATE OF THE RIGHT OF THE CITLZENRY TO SPORTS AND PHYSICAL EDUCATIONProposed Resolution No. 472, entitled:
Introduced by Honorable Quesada, Sarmiento, Garcia, Suarez, Nolledo and Brocka
TO THE COMMITTEE ON HUMAN RESOURCES
RESOLUTION TO BROADEN THE SCOPE OF THE ARTICLE ON THE BILL OF RIGHTS TO INCORPORATE ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Introduced by Honorable Quesada, Sarmiento, Villacorta, Garcia, Maambong, Foz, Nieva, Bennagen, Aquino, Gascon, Tan, Brocka, Davide, Rosario Braid, Uka, Tadeo, Nolledo and Suarez
TO THE COMMITTEE ON CITIZENSHIP, BILLS RIGHTS, POLITICAL RIGHTS AND OBLIGATIONS AND HUMAN RIGHTS
Communication No. 161 — Constitutional Commission of 1986
Letter from Bulacan Social Action Movement signed by Mr. Tirso G. Robles, Jr. Proposing a provision mandating the Legislature to enact laws on socialized medicineCommunication No. 162 — Constitutional Commission of 1986
TO THE COMMITTEE ON SOCIAL JUSTICE
Letter from the Promotion of Church People’s Rights signed by Fr. Rogelio Obja-an, OSA, Sr., Aurora R. Zambrano, ICM, and other members from regions of Mindanao and Visayas and the national office, proposing the removal of foreign military bases, and suggesting provisions on land reform, national industrialization, and human rightsCommunication No. 163 — Constitutional Commission of 1986
TO THE STEERING COMMITTEE
Communication from the Union United Churchmen of Northern Mindanao, suggesting that a portion of the income tax proceeds be set aside and administered by religious denominations for the purpose of helping the poorCommunication No. 164 — Constitutional Commission of 1986
TO THE COMMITTEE ON SOCIAL JUSTICE
Letter from Fr. Bernard D. Verberne, MSC, of the Multi-Sectoral Alliance for Tribal Concerns in Agusan, requesting public hearings to give tribal Filipinos opportunity to express themselves on their right to land, their own culture, and system of justiceCommunication No. 165 — Constitutional Commission of 1986
TO THE COMMITTEE ON HUMAN RESOURCES
Letter from Davao Inventors Society signed by Mr. Domnino S. Cagape, submitting a resolution petitioning the Commission for the creation of an Inventors Trust FundCommunication No. 166 — Constitutional Commission of 1986
TO THE COMMITTEE ON HUMAN RESOURCES
Letter from Bicol Multi-Sectoral Organization, Manila, signed by Sr. Gloria A. Martires, CFIC, and thirty-two others requesting the inclusion of provisions on environmental protection from pollution, deforestation, and unscrupulous gathering of coralsCommunication No. 167 — Constitutional Commission of 1986
TO THE COMMITTEE ON NATIONAL ECONOMY AND PATRIMONY
Letter from Aksyon Para sa Kapayapaan at Katarungan (AKKAPKA) signed by Ms. Esther Felipe of 224 Sto. Domingo St., Quezon City, and one thousand one hundred eighty-one others, proposing a separate article on education, labor and employment, housing and agrarian and urban land reformCommunication No. 168 — Constitutional Commission of 1986
TO THE COMMITTEE ON SOCIAL JUSTICE
Letter from Center for Solidarity Tourism signed by Mr. Crescencio A. Yaco, enclosing a resolution requesting a provision for the development of alternative tourism or "backyard tourism"
TO THE COMMITTEE ON CITIZENSHIP, BILL OF RIGHTS, POLITICAL RIGHTS AND OBLIGATIONS AND HUMAN RIGHTS
Committee Report No. 18 on the Draft Article on the Judiciary prepared by the Committee on the Judiciary,
recommending its approval.
Sponsors: Hon. Concepcion, De los Reyes, Jr., Azcuna, Guingona, Colayco, Davide, Jr., Suarez, Regalado, Romulo, Treñas, Padilla, Sumulong, Jamir, Sarmiento, Uka, Natividad and Bengzon
TO THE STEERING COMMITTEE
Committee Report No. 19 on Proposed Resolution No. 468, prepared by the Committee on Constitutional Commissions and Agencies, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION THE COMMON PROVISIONS ON THE CONSTITUTIONAL COMMISSIONS AND THE PROVISIONS ON THE CIVIL SERVICE COMMISSION,
recommending its approval in substitution of Proposed Resolutions Nos. 51, 54, 108, 117, 135, 139, 238, 240, 281, 356 and 357.
Sponsors: Hon. Foz, Rigos and RegaladoTO THE STEERING COMMITTEE
Committee Report No. 20 on Proposed Resolution No. 469, prepared by the Committee on Constitutional Commissions and Agencies, entitled:
RESOLUTION PROVIDING FOR THE PROVISIONS ON THE COMMISSION ON AUDIT IN THE NEW CONSTITUTION,
recommending its approval in substitution of Proposed Resolutions Nos. 21 and 282.
Sponsors: Hon. Foz, Jamir and MonsodTO THE STEERING COMMITTEE
Committee Report No. 21 on proposed Resolution No. 470, prepared by the Committee on Local Governments, entitled:
RESOLUTION PROPOSING TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON LOCAL GOVERNMENTS,
recommending its approval in substitution of Proposed Resolutions Nos. 182, 329 and 361.
Sponsors: Hon. Nolledo, Calderon, Tingson, Rosales, Alonto, De Castro, Bennagen, Rigos, Regalado, Jamir and OpleTO THE STEERING COMMITTEE
Committee Report No. 22 on the proposed Article on the National Assembly prepared by the Committee on the Legislative,
recommending its approval.
Sponsors: Hon. Davide, Jr., Azcuna, Abubakar, Alonto, Aquino, Calderon, Concepcion, De los Reyes, Jr., Garcia, Guingona, Jamir, Lerum, Rodrigo, Sumulong and Treñas
Co-sponsors: Hon. Villacorta, Romulo, Regalado, Foz, Gascon, Tingson, Monsod, Rigos and Sarmiento
TO THE STEERING COMMITTEE
RECONSIDERATION OF VOTE ON THIRD READING ON PROPOSED RESOLUTION NO. 263
On motion of Mr. Bengzon, there being no objection, the Body ,approved the reconsideration of the vote on Third Reading on Proposed Resolution No. 263, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON NATIONAL TERRITORY.SUSPENSION OF THE RULES
On motion of Mr. Bengzon, there being no objection, the Body approved the suspension of the Rules to return the status of Proposed Resolution No. 263 back to Second Reading (period of amendments) for the purpose of accommodating an amendment.
AMENDMENT OF MR. BERNAS
Thereupon, Mr. Bernas proposed on line 3 to change the clause "all the other territories over which the government exercises sovereign jurisdiction to ALL OTHER TERRITORIES OVER WHICH THE PHILIPPINES HAS SOVEREIGNTY OR JURISDICTION.
Explaining the changes, Mr. Bernas stated that the change from "government" to PHILIPPINES was in recognition of the recommendation of Mr. Padilla; and the change from "exercises" to HAS, in recognition of the objection of Mr. Concepcion that a State continues to have jurisdiction over a territory even if physically wrested from it whereas, in order to acquire territory, the State must exercise jurisdiction over it.
MANIFESTATION OF MR. NOLLEDO
Mr. Nolledo, on behalf of the Committee on Preamble, National Territory and Declaration of Principles, accepted the proposed amendments.
INQUIRIES OF MR. DAVIDE
In reply to Mr. Davide's query on whether "sovereignty" includes past or present sovereignty, Mr. Bernas stated that it means present and not past sovereignty which implies that past sovereignty had been lost.
With respect to Mr. Davide's query on whether the import of the amendment is the same as the original proposal, Mr. Bernas stated that the change in import is in the change from "exercise" to HAS. Mr. Bernas explained that, whereas the original proposal could be understood to mean that the State loses the territory if it is unable to exercise physical control, under the new proposal, it continues to have sovereignty over it.
On the matter of Sabah, Mr. Bernas stated that it would not be included as part of the national territory if it is proven that the Philippines has no sovereignty or jurisdiction over it. However, specifically, as to whether it means dropping the historic right or legal title over Sabah, Mr. Bernas stated that it is not being dropped but is being left unsettled because the Commission is not a judicial body capable of passing judgment on a factual issue.
INQUIRIES OF MR. DE CASTRO
In reply to Mr. de Castro's query on whether with the phrase "has sovereignty or jurisdiction", the Philippines would not be foreclosing its claim over Sabah, Mr. Bernas explained that the provision does not make nor drop any claim over Sabah but prescinds from any claim. He also disagreed that the Philippines would lose a historic right or legal title over Sabah because a claim can always be made under the accepted modes of establishing a claim under international law.
INTERPELLATION OF MR. ABUBAKAR
On whether the Philippines had ever acquired jurisdiction over Sabah within the context of the Article on National Territory, Mr. Bernas explained that the question on Sabah is not addressed to and that the Body would prescind from the question under the revised amendment.
As to the Sponsor's refusal to face the Sabah issued and answer the question whether the Philippines had ever acquired jurisdiction over Sabah, Mr. Bernas maintained that he is not in a position to answer the factual issues of the case. He explained that the Body had not been given the documents and evidence that would enable it to make a judgment. He stated that the judgment on the Sabah issue should be after due process or after heating of evidence.
REMARKS OF MR. GUINGONA
Mr. Guingona adverted to his objection to a motion in the previous session for reconsideration of the vote on the Article on National Territory, at which time he presented a motion to recommit it to the Committee concerned but desisted therefrom after consultation with other Members. He then invited attention to a statement on sovereignty made by Messrs. Kaplan and Katzenbach, that there is no more confusing concept in international law than sovereignty which has been viewed indiscriminately in a number of different meanings by decision-makers and scholars alike. He noted that "sovereignty" in the revised amendment refers to present sovereignty and that the use of the phrase "has sovereignty" would signify the preemption of any future claim of sovereignty to any territory. He expressed his regret that the matter has to be brought up and stated his preference to allow "sovereignty" to remain as it is without further interpretation.
In reply thereto, Mr. Bernas explained that the only thing he excluded in his answer to Mr. Davide's interpellation was past sovereignty. He stressed that he did not exclude any future claim.
VOTING ON MR. BERNAS' AMENDMENT
Submitted to a vote, and with 38 Members voting in favor and 2 against, the amendment was approved by the Body.
TERMINATION OF PERIOD OF AMENDMENTS
Thereafter, on motion of Mr. Rama, there being no objection, the Body closed the period of amendments on Resolution No. 263.
APPROVAL ON SECOND READING, OF PROPOSED RESOLUTION NO. 263, AS AMENDED
On motion of Mr. Rama, Resolution No. 263, as amended, was submitted to a vote on Second Reading and with 39 Members voting in favor and 3 against, the same was approved by the Body.
MOTION OF MR. BENGZON
Thereupon, Mr. Bengzon moved for suspension of the Rules to enable the Body to vote on Third Reading on Proposed Resolution No. 263, which motion, there being no objection, was approved by the Body.
APPROVAL, ON THIRD READING OF PROPOSED RESOLUTION NO. 263, AS AMENDED
Thereafter, on motion of Mr. Rama, there being no objection, the Body proceeded to vote, on Third Reading, on Proposed Resolution No. 263, as amended, entitled:
Resolution to incorporate in the new Constitution an Article on National Territory.Upon direction of the Chair, the Secretary-General called the Roll for nominal voting. Thereafter, a second call was made.
EXPLANATION OF VOTES
The following Members explained their votes:
By Mr. de Castro
Mr. de Castro voted No. explaining that under the proposed Article, the Philippines would in effect drop its claim to Sabah and to any territory it may want to claim in the future. He stated that the Executive should have been given the opportunity to have a say on such a delicate and important issue.
By Mr. Davide
Mr. Davide voted No, stating that he could not perceive any difference between the original and the modified Bernas amendment.
By Mr. Guingona
Mr. Guingona thanked Mr. Bernas for partially accepting his suggestion to change "sovereign jurisdiction" to "sovereignty or jurisdiction". In the light of the interpellation of Mr. Davide, he stated that he was constrained to vote against the Article.
RESULT OF THE VOTING
The result of the voting was as follows:
With 39 Members voting in favor, 4 against and no abstention, the Body approved, on Third Reading, Proposed Resolution No. 263, as amended.
In favor: Abubakar Nieva Alonto Nolledo Aquino Ople Azcuna Padilla Bacani Quesada Bengzon Regalado Bennagen De los Reyes Bernas Rigos Rosario Braid Rodrigo Colayco Romulo Concepcion Sarmiento Foz Suarez Garcia Sumulong Gascon Tadeo Jamir Tan Laurel Treñas Lerum Uka Maambong Villacorta Monsod Villegas Natividad Against: De Castro Guingona Davide Rama Abstention: None
APPROVAL, ON THIRD READING, OF PROPOSED RESOLUTION NO. 7, AS AMENDED
On motion of Mr. Rama, there being no objection, the Body proceeded to vote, on Third Reading, on Proposed Resolution No. 7, entitled:
Resolution to incorporate in the new Constitution an Article on Citizenship.Upon direction of the Chair, the Secretary-General called the Roll for nominal voting. Thereafter, a second call was made.
RESULT OF THE VOTING
The result of the voting was as follows:
With 36 Members voting in favor, 5 against and no abstention, the Body approved, on Third Reading, Proposed Resolution No. 7, as amended.
In favor: Abubakar Natividad Alonto Nieva Aquino Nolledo Azcuna Ople Bacani Quesada Bengzon Rama Bennagen Regalado Bernas De los Reyes Rosario Braid Rigos De Castro Rodrigo Colayco Romulo Davide Sarmiento Garcia Sumulong Gascon Tan Jamir Treñas Laurel Uka Maambong Villacorta Monsod Villegas Against: Concepcion Suarez Guingona Tadeo Padilla Abstention: None
SUSPENSION OF SESSION
The Chair suspended the session.
It was 4:02 p.m.
RESUMPTION OF SESSION
At 4:06 p.m. the session was resumed with the Honorable Adolfo S. Azcuna presiding.
CONSIDERATION OF COMMITTEE REPORT NO. 18 ON THE DRAFT ARTICLE ON THE JUDICIARY
At this juncture, on motion of Mr. Bengzon, there being no objection, the Body proceeded to the consideration, on Second Reading, of Committee Report No. 18 on the draft Article on the Judiciary.
SUSPENSION OF SESSION
The Chair suspended the session.
It was 4:09 p.m.
RESUMPTION OF SESSION
At 4:43 p.m., the session was resumed.
Upon resumption, the Chair recognized Mr. Concepcion for his sponsorship of the measure.
SPONSORSHIP SPEECH OF MR. CONCEPCION
Mr. Concepcion prefaced his sponsorship with the observation that the Judiciary is the weakest of the three branches of government because, unlike the Executive and the Legislative, except for the power of reason, it has nothing to enforce its decisions.
Thereupon, explaining the salient features of the provisions of the Article on the Judiciary, Mr. Concepcion stated that a new provision is proposed to be incorporated in Section 1 defining “judicial power” to include the duty of 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.
He stated that the provision is a product of past experiences when in cases brought against the government or its officials which had no legal defense at all the then Solicitor-General would set up the defense that said cases involved political questions over which the Supreme Court had no jurisdiction. He stated that such encroachment upon the rights of people continued during martial law.
Citing the case of Javellana vs. the Secretary of Justice, Mr. Concepcion recalled that when the 1971 Constitutional Convention submitted the 1973 Constitution to the President, who, in turn, was to call plebiscite for the ratification of said Constitution, petition was filed before the Supreme Court questioning the President's authority to appropriate fund either for a plebiscite or a referendum, the power a appropriation being a legislative prerogative. But while the Supreme Court was still hearing the case, he disclosed that the Minister of Justice brought him a copy of the proclamation declaring the adoption of the Constitution through a referendum. He noted that even the Members of the Supreme Court were surprised to learn that a referendum was held, and felt that a referendum could not just substitute for a plebiscite. And when other cases were filed to declare the proclamation of the President null and void, said cases were dismissed on the ground that the issue was a political question.
He also cited the case of representation in the Senate Electoral Tribunal wherein the Opposition was entitled to three seats but got only one because there was no other nomination aside from Senator Tañada so the majority party filled up the remaining two seats. The Supreme Court upheld the majority on the ground that it was a political issue.
In another case, he also recalled the issue on whether to grant parity rights to America in exchange of S1 million. The Members of the Minority then were suspended from their seats in Congress because of alleged fraud, threats and intimidation they committed in the election and with nobody to oppose them, the Majority got the required two-thirds vote. When asked whether the number of the Minority should be included in the determination of the two-thirds vote, the Supreme Court decided that it was a political question.
Mr. Concepcion opined that the obvious reason for the suspension was to enable the majority to get the votes necessary for the approval of the bill calling for a plebiscite.
He stated that when the Committee considered the provision that judicial power shall be vested in one Supreme Court and such inferior courts as may be prescribed by law, the question as to the scope of judicial power and political question was propounded.
On the functions of the courts, Mr. Concepcion stated that the Supreme Court and the rest of the lower courts are duty-bound to settle controversies involving conflicts of rights which are demandable and enforceable. He stated that there are also rights guaranteed by law which are, however, not enforceable, such as when a woman reneges from her duties as a wife. He stated that in such case, it would be inimical and odious to the dignity of the woman and to the nobility of human beings to use any form of compulsion. This, he stated, is the reason why the second paragraph of Section 1 speaks of the duty of the courts to settle actual controversies involving rights which are legally demandable or enforceable. He stressed that under this established rule, the courts cannot exercise their powers on hypothetical questions by applying general principles without considering the background of the situation.
Mr. Concepcion pointed out that in a presidential system, the Supreme Court has a more important function because of the separation of powers into three branches: the legislative, the executive and the judiciary. He stressed that each branch is supreme within its own sphere being independent from one another and it is this supremacy which enables the courts to determine whether a law is constitutional or unconstitutional.
By virtue thereof, Mr. Concepcion maintained that the functions of courts of justice is to determine the limit and pronounce judgment on whether or not certain officers of the government have acted within their territory. He stated that if the Judiciary feels that the department or branch concerned has acted without jurisdiction or in excess of its jurisdiction amounting to an arbitrary abuse of power, the courts are empowered and duty-bound to render judgment on these matters. He stated that these constitute the background of paragraph 2 of Section 1 which means that the court cannot later on wash its hands by saying that it is a political question.
On Section 2, Mr. Concepcion explained that it was merely taken from the second sentence of Section 1 of the 1973 Constitution. On the second paragraph of said section, Mr. Concepcion stated that there has been a number of resolutions that have been submitted on the matter providing for security of tenure of judges.
On subparagraph (1), Section 3, on the proposed composition of the Supreme Court, Mr. Concepcion stated that the membership is reduced from 15 to 11 with a Chief Justice and ten Associate Justices who may sit en banc or in two divisions.
On subparagraph (2), Section 3, Mr. Concepcion stated that the vote required for the Supreme Court to render a decision sitting en banc is majority plus one which is the same number of votes required for the imposition of the death penalty.
On subparagraph (4), Section 3, Mr. Concepcion stated that the court may meet in two divisions or en banc, and that a quorum would require only a majority vote, unlike in the 1973 Constitution where ten votes were required. He explained that the two-thirds vote requirement is favorable to the Executive because it would need more votes than the ordinary case to declare an act of the Executive unconstitutional.
On subparagraph (1), Section 4, Mr. Concepcion explained that there are two changes in this provision: 1) Supreme Court justices must meet the service requirement of being a judge of a court of record or engage in the practice of law in the Philippines for 15 years; and 2) that the word "inferior court" has been changed to "lower court" as the term has a derogatory implication.
On Section 5, Mr. Concepcion stated that the choice of the President in filling vacancies in the Judiciary is limited to a list of nominees drawn by a Judicial and Bar Council which, he said, would be discussed in detail later. He stressed that such appointments need no confirmation, citing the proposed provision itself. He stated that the provision was suggested by practicing lawyers because in the past, judges had to practically beg for confirmations of their appointments.
On subparagraph (1), Section 6, Mr. Concepcion stated that the Committee sought to establish a Judicial and Bar Council composed of representatives from the major sectors of society.
On the first sentence of subparagraph (2) of the same Section, Mr. Concepcion invited attention to the words "regular members" who, he stressed, would be other than the ex-officio members.
On subparagraph (4) of the same Section, Mr. Concepcion explained that the Council would work throughout the year, screening nominees for 2,200 positions in the bench.
On paragraph (3), subparagraph (2) of Section 7, Mr. Concepcion invited attention to the fact that the death penalty was voted down by the Committee and if the death penalty is eliminated, this particular provision shall likewise be eliminated.
At this juncture, upon suggestion of Mr. Colayco, the Secretary-General continued with the reading of the draft Resolution without prejudice to Mr. Concepcion's entertaining questions afterwards.
INTERPELLATION OF MR. NOLLEDO
Mr. Nolledo prefaced his interpellation by stating that the term "actual controversies" which is found in the second paragraph of Section 1 would, as Mr. Concepcion explained, refer to questions which are political in nature and, therefore, the courts could not refuse to decide on political questions. As to whether this is restrictive or only an example, inasmuch as there are cases which are not actual but over which the court can assume jurisdiction such as the petition for declaratory relief, Mr. Concepcion replied that the Supreme Court has no jurisdiction to grant declaratory judgments.
Mr. Concepcion affirmed that judicial power is vested not only in the Supreme Court but also in lower courts as may be created by law.
Mr. Concepcion noted that the interpellant seems to identify political questions with jurisdictional questions which are different. Judicial power, he explained, refers to ordinary cases among citizens. In such cases, however, when there is a question as to whether the government having authority has abused its authority amounting to a lack of jurisdiction or an excess of it, such is not considered a political question and the Court has the duty to decide the case.
Adverting to the second paragraph of Section 2 which reads "No law shall be passed reorganizing the judiciary when it undermines security of tenure", Mr. Nolledo recalled a Supreme Court ruling that there is no vested right to public office and that if a public office is abolished, security of tenure is not adversely affected. As to whether the doctrine would be changed by the proposed Section, Mr. Concepcion replied in the affirmative stating that reorganization should not be resorted to for the purpose of dismissing any judge.
Thereafter, Mr. Davide expounded on his resolution on security of tenure which has been amended by Commissioner Padilla. He recalled that in 1980 there was a general reorganization of the Judiciary purportedly to economize but the main purpose of which was to enable the past administration to rid the Judiciary of some people whom it considered to be anti-administration and to replace them with people who were loyal. The result was the expulsion of judges who had no padrinos and the entry of people who had the necessary political connections. He recalled that in spite of the creation of the Integrity Council to effect the revamp, its recommendations were bypassed or disregarded.
Mr. Davide opined that the independence of the Judiciary cannot be protected or enhanced if the National Assembly, for any reason whatsoever, can effect a reorganization at any time but that under the proposal the independence of the Judiciary shall be afforded the necessary protection.
As to whether the ruling of Justice Fernando in the case of dela Llana vs. Alba, where he opined that the abolition of a public office does not involve security of tenure, will be deemed obsolete should the new provision be adopted, Mr. Davide admitted that it was the general doctrine and that the Committee sought to limit itself to its position on the security of tenure of the Judiciary.
As to whether "international agreement" refer to a treaty, Mr. Concepcion stated that the word "treaty" is not proper for the set of rules incorporated into international agreements.
Thereafter, Mr. Nolledo adverted to Resolution No. 188 which was not mentioned in Committee Report No. 18, entitled:
Resolution to enshrine in the Article on the Judiciary of the new Constitution, ethical rules on qualifications and conduct of Members of the Judiciaryand which he intends to introduce as an amendment for the Committee's consideration specifically under Section 4 by adding a third and fourth subsection, to read:
3) THAT NO ONE SHALL BE APPOINTED AS MEMBER OF THE JUDICIARY UNLESS HE IS A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY AND INDEPENDENCEwhich are similar to the provisions in the Canon of Judicial Ethics.
4) THAT THE ACTUATIONS OF A MEMBER OF THE JUDICIARY IN OR OUTSIDE THE COURT MUST BE BEYOND REPROACH
As to whether in disciplining a member of the Judiciary, a constitutional mandate may be cited stating that he has not acted beyond reproach as enjoined by the Constitution, Mr. Concepcion explained that the Judicial and Bar Council exists for the purpose. He maintained that it is the task of the Committee to make good laws but no matter how good the laws are if the persons chosen to enforce these laws are not the right persons, they would be doing the country a disservice.
Mr. Concepcion affirmed that the moral qualifications set forth under the Constitutional proposal may be considered guidelines by the Judicial and Bar Council.
As to whether the Judicial and Bar Council would determine the qualifications of prospective appointees, Mr. Concepcion replied in the affirmative.
Mr. Nolledo inquired as to the meaning of the term "other stations" in Section 7 (3) since there are trial courts within a particular region. Adverting to this provision, he inquired whether the temporary assignment of a judge within a region can be considered as an assignment to "other stations" in view of an obiter dictum of the Supreme Court which does not treat this an assignment as it is within the region.
In reply, Mr. Concepcion stated that the appointments are extended for a particular branch of a given region but that one branch is different from the other.
As to whether the Committee will consider for possible inclusion in Section 14, subsection (4), his Proposed Resolution No. 367 entitled:
Resolution to provide in the new Constitution that the death penalty imposed on the accused must be resolved by the Supreme Court within two years from the date of judgment, otherwise the same shall be reduced to life imprisonment, except if the accused, by written manifestation, insists on the resolution of his plea of innocence,Mr. Concepcion raised the problem in organization. He explained that Mr. Nolledo's question refers to cases where the death penalty has been imposed while majority of the Members of the Committee concerned had voted to abolish it. Mr. Concepcion also pointed out that insofar as the Supreme Court is concerned, there is a paragraph pertaining to imposition of the death penalty or capital punishment and life imprisonment but which paragraph is still subject to the Committee's decision on whether or not to impose the death penalty. He pointed out that the concerns of Mr. Nolledo such as those seeking to protect the image of judges as well as the refinement of present rules have been provided.
Mr. Nolledo stated that in the 1971 Constitutional Convention the time limit for decision of cases was considered mandatory but a subsequent Supreme Court ruling considered it to be directory. As to the intent of the Committee in Section 14, Mr. Concepcion clarified that the word used is "must", making it an order and not merely a directive.
Mr. Nolledo pointed out that the Supreme Court ruling says "must" or "shall" in view of the clogging of cases which has made it impossible for the body to meet the time limitation, in reply to which Mr. Concepcion stressed that the Committee's view is that the Supreme Court shall devise a plan to unclog the dockets of the courts. He drew attention to an addition in the draft which states that the Chief Justice shall address the Congress at the beginning of its regular session so as to encourage him and give him a greater image.
REMARKS OF MR. PADILLA
As a follow-up to Mr. Davide's remarks on paragraph (2), Section 2, Mr. Padilla recalled that the Batasang Pambansa enacted the Judiciary Reorganization Act which was assailed as illegal and unconstitutional. The Act paved the way for the reorganization of the courts such that the Court of Appeals was changed to the Intermediate Appellate Court; the Courts of First Instance to Regional Trial Courts; and Municipal Courts to Municipal Trial Courts, which resulted in the easing out of judicial officials belonging to courts lower than the Supreme Court. He stated that the reorganization undermined the independence of the Judiciary and assaulted the principle of security of tenure of judicial officials.
He adverted to his first case before the Supreme Court where he appeared as the Solicitor-General in the case of Ocampo vs. Secretary of Justice. He stated that at that time Congress approved a law abolishing the positions of judges-at-large and cadastral judges. At the time judges-at-large or cadastral judges, who did not have districts of their own, were assigned to particular trial courts to hear particular cases, which assignments were made by the Justice Secretary upon direction of the President. Mr. Padilla said that in defense of that law he argued that it was not a violation but an implementation of the 1935 Constitutional provision, which view was sustained by some justices though the majority held the opinion that, insofar as it would legislate out judges whose appointments were judges-at-large and cadastral judges, was unconstitutional because it violated the security of tenure of these judges. He maintained that the majority sanctioned the fundamental principle of security of tenure to ensure the independence of the Judiciary.
He stressed that under the proposal, the Legislature shall not be allowed to pass a bill to revamp or reorganize the Judiciary so as to undermine the security of tenure of judicial officers.
STATEMENT OF MR. CONCEPCION
Mr. Concepcion maintained that as long as the President exercises the power to reorganize the Judiciary, security of tenure of judges will not be fully realized.
INTERPELLATION OF MR. BERNAS
As to whether the provision on judicial reorganization is not a prohibition on reorganization, Mr. Concepcion replied in the affirmative.
As to whether the reorganization done in such manner so as not to undermine the security of tenure is a matter which the Supreme Court must decide, Mr. Concepcion also replied in the affirmative.
On whether it is the intention of Section 1 to do away with the political question doctrine, Mr. Concepcion stated that it is not, explaining that while it was originally drafted to define judicial power, the Committee thought the definition might cover all possible areas, hence, the use of the phrase "judicial power includes". He affirmed, however, that it is not just an attempt to solve the problems arising from the political question doctrine.
On whether Section 3(3) has reference to the application or operation of a presidential decree but not to the decree itself, Mr. Concepcion stated that insofar as a decree is invalid, it would not affect its application or operation, although he agreed that it is possible for a valid law to be invalidly applied and that for purposes of invalidating its application or operation, it would require a vote of the majority plus one of the members who actually participated in the deliberation.
As to who would decide whether a Member has become incapacitated, Mr. Concepcion, while admitting that the matter has not been decided upon by the Committee, opined that the Judicial and Bar Council, as well as the Supreme Court, should be consulted. He affirmed that the procedure on the matter could be settled by ordinary legislation.
On Section 8, Mr. Concepcion stated that it would not prohibit the justices from giving advisory opinions to the President.
INTERPELLATION OF MR. RODRIGO
In reply to Mr. Rodrigo's queries, Mr. Concepcion affirmed that the present Constitution provides for a definite number of votes of justices, which is ten, in order to decide certain matters, while the Committee Report proposes that a vote of the majority plus one of the members who actually participated is required for a decision. In applying this latter type of vote, he explained that when the court sits en banc and for it to have a quorum, there must be six justices actually participating and in rendering a decision, a vote of five members is required.
On Mr. Rodrigo's suggestion that if the vote of five justices, which is not the majority of the total membership of the Supreme Court, is enough to render a 'decision, it would be better to require the vote of the majority of all the justices in rendering decisions on very important matters, Mr. Concepcion stated that the suggestion applies when the entire membership is filled. He pointed out, however, that the experience is that the membership prescribed by the Constitution has seldom, if ever, been fully filled. He stated that the provision seeks to encourage the expeditious disposal of cases and that if one judge of the lower court can declare a law unconstitutional, with more reason that five justices can do it.
On Section 5, Mr. Concepcion affirmed that at present, the appointing power is vested in the President and, possibly, later with the confirmation of the Commission on Appointments. As proposed, however, he stated that there would be a Judicial and Bar Council which would recommend three for every vacancy from which the President could make his appointment. He further affirmed that should the President not appoint any of the three recommendees, he could ask the Council to submit another list.
With respect to the composition of the Judicial and Bar Council, Mr. Concepcion stated that the four regular members would be appointed by the President, subject to reappointment. He stated that the staggered terms of office is aimed at eliminating politics.
On the Rules of Court, on the observation that the job of the Congress would be rendered inutile if before it can enact, supplement, alter or repeal the Rules, advice and concurrence must be had from the Supreme Court, Mr. Concepcion stated that while the Committee would not object to the deletion of said provision, it intends to leave the matter to the members of the Judiciary who are in a position to determine their needs.
On appeal from the judgment of acquittal in a criminal case, Mr. Concepcion affirmed that this may be allowed upon the discretion of the Supreme Court by a petition for review on certiorari on the ground that it is manifestly against the evidence and rendered with grave abuse of discretion amounting to lack or excess of jurisdiction.
Mr. Rodrigo then inquired whether a judgment of acquittal could be appealed to a court other than the Supreme Court.
At this juncture, Mr. Concepcion yielded the floor to Mr. Padilla, author of the provision.
REPLY OF MR. PADILLA
In reply, Mr. Padilla explained that the Committee felt that a petition for review on certiorari should only be upon the discretion of the Supreme Court especially when the question involves jurisdiction although he originally proposed that it should be upon the discretion of the Appellate Court. As on of the grounds for review, the Committee likewise added "grave abuse of discretion" to his original proposal.
REPLY OF MR. CONCEPCION
Finally, on the observation that the Supreme Court would be swamped by an avalanche of petitions for certiorari considering the thousands of criminal cases filed all over the country, Mr. Concepcion replied "only God knows".
INTERPELLATION OF MR. BENGZON
On page 5 of the Committee Report, on Mr. Bengzon's suggestion to include the Sections indicated therein under the Article on the Judiciary instead of recommending their inclusion in the Article on Transitory Provisions, it being a continuing work of the Supreme Court, Mr. Concepcion stated that the Committee would have no objection to the suggestion.
On cases heard by a division which requires the concurrence of the majority of the members who actually participated when the case was submitted for decision, Mr. Concepcion agreed with Mr. Bengzon that in a division of five members; in which three would constitute a quorum, the concurrence of two members would decide the case for the entire court. Mr. Concepcion stated that if one regional judge can declare the unconstitutionality of a law, so can two Justices decide a case, which practice is part of the drive to clear the dockets of the Supreme Court.
On the reason for the staggered terms of the members of the Judicial and Bar Council, Mr. Concepcion explained that this is designed to ensure continuity in policies so that at no time should the Council have new members who are not posted on the policies of their predecessors.
On the problem raised that every single Justice of the Supreme Court wants to have a hand in the recommendations of the Judicial Superintendents, Mr. Concepcion stated that this could be a generalization of some situations during the Marcos regime, although politics was a problem in the Judiciary, particularly with respect to internal reorganization.
Finally, Mr. Concepcion affirmed that pursuant to Section 7(6), the appointment of sheriffs, clerks of court, bailiffs and all other employees in the Judiciary would be made by the Supreme Court.
MOTION OF MR. GASCON
Thereafter, Mr. Rama requested that Mr. Gascon be allowed to present a motion for reconsideration which had to be seasonably filed in accordance with the Rules.
Thereupon, Mr. Gascon moved for reconsideration of the approval on Second Reading of Committee Report No. 7 on the Article on Amendment or Revision, in order that he could present an amendment on the provision regarding the system of initiative .
At this juncture, on motion of Mr. Rama, there being no objection, the Body deferred consideration of Mr. Gascon's motion until the next session or other session days.
ADJOURNMENT OF SESSION
On motion of Mr. Rama, there being no objection, the Chair declared the session adjourned until nine o'clock in the morning of the following day.
It was 6:48 p.m.
I hereby certify to the correctness of the foregoing.
Secretary-General
ATTESTED:
(SGD.) CECILIA MUÑOZ PALMA
President
Approved on July 11, 1986