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CALL TO ORDER

At 9:30 a.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 Mr. Blas F. Ople, to wit:

Lord, You were the Original Taskmaster. In the Old Testament You gave a covenant to Your people. It was a good CBA or Collective Bargaining Agreement, as we would call it now, but the enjoyment of its benefits required reciprocal performance and sacrifice.

You promised them deliverance from oppression and the ultimate refuge of a land of justice flowing with milk and honey. But this was not going to be a simple gift of Your bounty. You did not promise a free lunch.

It was going to be a test of faith on a long journey beset by all kinds of dangers, hunger, discord and mutinies, the sword of unforeseen enemies, and the ultimate risk, the loss of moral endurance and of the will to struggle, the people's capitulation not to external enemies but to their own internal weakness.

Lord, in this Constitutional Commission we are drafting a Constitution that when ratified, will be the highest covenant between our people and their government. We are humbled by the sheer majesty of this task. It is beyond our means to promise a covenant that will redeem our people from the bondage of centuries, poverty, disease and injustice, and that will bring them to a promised land flowing with milk and honey. But it is within our means to forge, with common, dedicated labors, a framework of law and justice that will honor the humanity in every man and put the odds of the unending struggle for justice on earth on the side of the just and the faithful among Your children.

Extend to us, O Lord, the grace of Your own covenant with Your people. Help us so that we may live up to our name as the one Christian nation in Asia, a Christian nation graced by a new and stronger solidarity with our Muslim brothers in Mindanao. Help us frame a covenant between our people and their government that will heal all remaining wounds and bitterness from the past, that will forge a lasting solidarity among us through the structures of a just society, but always under the grace of Your Divine inspiration and guidance.

Amen.

ROLL CALL

Upon direction of the Chair, the Secretary-General of the Commission called the Roll and the following Members responded:

Aquino, F. S.	Nolledo, J. N.
Azcuna, A. S.	Ople, B. F.
Bacani, T. C.	Padilla, A. B.
Bennagen, P. L.	Muñoz Palma, C.
Bernas, J. G.	Quesada, M. L. M.
Brocka, L. O.	Rama, N. G.
Calderon, J. D.	Regalado, F. D.
De Castro, C. M.	De los Reyes, R. F.
Concepcion, R. R.	Rigos, C. A.
Davide, H. G.	Rodrigo, F. A.
Foz, V. B.	Romulo, R. J.
Garcia, E. G.	Rosales, D. R.
Gascon, J. L. M. C.	Sarmiento, R. V.
Guingona, S. V. C.	Suarez, J. E.
Jamir, A. M. K.	Sumulong, L. M.
Laurel, J. B.	Tadeo, J. S. L.
Lerum, E. R.	Tan, C.
Monsod, C. S.	Treñas, E. B.
Nieva, M. T. F.	Villegas, B. M.

With 38 Members present, the Chair declared presence of a quorum.

Messrs. Abubakar, Alonto, Bengzon, Mrs. Rosario Braid, Messrs. Natividad and Villacorta appeared after the Roll Call.

Messrs. Colayco, Maambong and Uka were absent.

Mr. Tingson notified the Constitutional Commission, through the Secretariat, of his absence.

READING AND APPROVAL OF THE JOURNAL

On motion of Mr. Calderon, 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. Calderon 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 of the Commission 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. 473, entitled:

RESOLUTION TO INCORPORATE IN THE ARTICLE ON THE TRANSITORY PROVISIONS A PROVISION AUTHORIZING THE PRESIDENT TO REVIEW ALL CONTRACTS, CONCESSIONS, PERMITS, OR OTHER FORMS OF PRIVILEGES FOR THE EXPLORATION, DEVELOPMENT, EXPLOITATION OR UTILIZATION OF THE NATURAL RESOURCES ENTERED INTO, GRANTED, ISSUED OR ACQUIRED BEFORE THE EFFECTIVITY OF THE NEW CONSTITUTION, AND TO AMEND, MODIFY OR REVOKE THE SAME

Introduced by Honorable Davide, Jr.

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

Proposed Resolution No. 474, entitled:

RESOLUTION TO INCORPORATE IN THE ARTICLE ON TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION THAT UNTIL THE NATIONAL ASSEMBLY FIRST ELECTED UNDER THIS CONSTITUTION SHALL HAVE ELECTED THE SPEAKER, THE INCUMBENT VICE-PRESIDENT SHALL BE THE PRESIDING OFFICER THEREOF

Introduced by Honorable Davide, Jr.

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

Proposed Resolution No. 475, entitled:

RESOLUTION TO INCORPORATE IN THE ARTICLE ON TRANSITORY PROVISIONS A PROVISION FIXING THE DATE OF EFFECTIVITY OF THE NEW CONSTITUTION AND ITS EFFECTS ON PREVIOUS CONSTITUTIONS

Introduced by Honorable Davide, Jr.

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

Proposed Resolution No. 476, entitled:

RESOLUTION TO INCORPORATE IN THE TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION ACCORDING RECOGNITION TO LAWS, PROCLAMATIONS, ORDERS, DECREES, INSTRUCTIONS OR ACTS NOT OTHERWISE INCONSISTENT WITH THE NEW CONSTITUTION, UNLESS THEY ARE MODIFIED OR REPEALED BY THE NATIONAL ASSEMBLY

Introduced by Honorable Davide, Jr.

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

Proposed Resolution No. 477, entitled:

RESOLUTION TO EXTEND STATE RECOGNITION AND SUPPORT TO COMMUNITY MEDIA AND OTHER FORMS OF SMALL MEDIA

Introduced by Honorable Rosario Braid

TO THE COMMITTEE ON GENERAL PROVISIONS

Proposed Resolution No. 478, entitled:

RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION ON THE RIGHT TO COMMUNICATE AND INITIATE COMMUNICATION

Introduced by Honorable Rosario Braid

TO THE COMMITTEE ON CITIZENSHIP, BILL OF RIGHTS, POLITICAL RIGHTS AND OBLIGATIONS AND HUMAN RIGHTS

Proposed Resolution No. 479, entitled:

RESOLUTION TO INCORPORATE IN THE DECLARATION OF PRINCIPLES THE RECOGNITION OF RURAL DEVELOPMENT AND AGRARIAN REFORM AS PRIORITIES OF THE STATE

Introduced by Honorable Rosario Braid

TO THE COMMITTEE ON SOCIAL JUSTICE

Proposed Resolution No. 480, entitled:

RESOLUTION TO INCLUDE A SECTION IN THE DECLARATION OF PRINCIPLES RECOGNIZING NON-GOVERNMENTAL INSTITUTIONS AND MASS BASED ORGANIZATIONS AS PARTNERS IN DEVELOPMENT

Introduced by Honorable Rosario Braid

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Proposed Resolution No. 481, entitled:

RESOLUTION TO INCORPORATE IN THE CONSTITUTION A PROVISION RECOGNIZING THE ROLE OF THE YOUTH IN NATION-BUILDING AND GUARANTEEING THEIR REPRESENTATION IN POLICY-MAKING BODIES OF THE GOVERNMENT

Introduced by Honorable Gascon

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Proposed Resolution No. 482, entitled:

RESOLUTION TO GIVE MEANING AND SUBSTANCE TO THE CONSTITUTIONAL PROVISION AGAINST CRUEL OR UNUSUAL PUNISHMENT

Introduced by Honorable Natividad, Maambong, Ople and De los Reyes, Jr.

TO THE COMMITTEE ON CITIZENSHIP, BILL OF RIGHTS, POLITICAL RIGHTS AND OBLIGATIONS AND HUMAN RIGHTS

Proposed Resolution No. 483, entitled:

RESOLUTION TO ADOPT A SECTION IN THE TRANSITORY PROVISIONS FREEZING ALL SEQUESTRATION ORDERS ISSUED BY VIRTUE OF PROCLAMATION NO. 3 ON MARCH 25, 1986 UPON THE ADOPTION OF THIS CONSTITUTION UNTIL JUDICIAL CONFIRMATION

Introduced by Honorable Bernas and Aquino

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

Proposed Resolution No. 484, entitled

RESOLUTION TO INCORPORATE IN THE TRANSITORY PROVISIONS A PROVISION REQUIRING ALL OFFICIALS AND EMPLOYEES OF THE GOVERNMENT, INCLUDING THOSE IN GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS AND THE OFFICERS AND MEMBERS OF THE ARMED FORCES OF THE PHILIPPINES TO TAKE AN OATH TO SUPPORT, PROTECT, PRESERVE, AND DEFEND THE NEW CONSTITUTION

Introduced by Honorable Davide, Jr.

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

Proposed Resolution No. 485, entitled:

RESOLUTION TO INCORPORATE IN THE TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION REQUIRING THE SUBMISSION OF ALL TREATIES OR INTERNATIONAL AGREEMENTS WHICH WERE NOT RATIFIED BY THE PREVIOUS LEGISLATURES TO THE NATIONAL ASSEMBLY FOR APPROPRIATE ACTION

Introduced by Honorable Davide, Jr.

TO THE COMMITTEE ON AMENDMENTS AND TRANSITORY PROVISIONS

COMMUNICATIONS
Communication No. 169 — Constitutional Commission of 1986

Letter from the National Nutrition Council signed by Dr. Josefina Atienza-Salvaña, requesting mention of nutrition as one of the fields in which the state shall provide social services

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Communication No. 170 — Constitutional Commission of 1986

Letter from the Labor Advisory Consultative Council, signed by Mr. J. Edralin and three others, submitting a draft resolution proposing protection to labor and guaranteeing basic human and trade union rights

TO THE COMMITTEE ON SOCIAL JUSTICE

Communication No. 171 — Constitutional Commission of 1986

Letter from the Supreme Cooperative Council of the Philippines signed by Messrs. Arcadio S. Lozada, Manuel F. Verzosa and Vicente A. Martires submitting a draft resolution proposing a state policy on cooperatives

TO THE COMMITTEE ON NATIONAL ECONOMY AND PATRIMONY

Communication No. 172 — Constitutional Commission of 1986

Letter from the Honorable Commissioner Cirilo A. Rigos, transmitting a letter from Mr. Liberato Gamo, a retired civil servant of 253 Constancia St., Sampaloc, Manila requesting a constitutional assurance that retirees shall receive in full their gratuities at the time of their retirement   

TO THE COMMITTEE ON CONSTITUTIONAL COMMISSIONS AND AGENCIES

Communication No. 173 — Constitutional Commission of 1986

Letter from Mr. Jeremias U. Montemayor for the Federation of Free Farmers, submitting a copy of the article "Social Justice and the Constitution"

TO THE COMMITTEE ON SOCIAL JUSTICE

Communication No. 174 — Constitutional Commission of 1986

Communication from Mr. Fabian M. Dayrit, recommending provisions on science and technology

TO THE COMMITTEE ON HUMAN RESOURCES

COMMITTEE REPORT
Committee Report No. 23 on Proposed Resolution No. 486, prepared by the Committee on Citizenship Bill of Rights, Political Rights and Obligations and Human Rights, entitled:

RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON THE BILL OF RIGHTS

recommending its approval in substitution of Proposed Resolutions Nos. 4, 84, 26, 28, 40, 45, 48, 58, 65, 94, 98, 101, 103, 131, 154, 160, 165, 169, 175, 184, 191, 202, 209, 210, 226, 237, 242, 245, 250, 258, 261, 274, 287, 293, 297 and 314.

Sponsors: Hon. Laurel, Jr., Bernas, Davide, Jr., Bengzon, Jr., Abubakar, Colayco, Sarmiento, Tadeo, Garcia, Villegas, Rodrigo, Bennagen, Lerum, Bacani Padilla and Natividad

ANNOUNCEMENT OF MR. BENGZON

At this juncture, Mr. Bengzon announced that in line with the decision reached in the meeting of the Steering Committee the previous day, the last day for the filing of Proposed Resolutions would be on Tuesday, July 15, 1986, after which, whatever proposals the Members may have, may be introduced as amendments.  

He also announced that should the Article on the Judiciary be finished during the day's session, the Steering Committee intends to schedule for sponsorship, interpellations and possible amendments on Monday, July 14, 1986, Committee Report No. 19 on the Constitutional Commissions and the Civil Service Commission, and Committee Report No. 20 on the Commission on Audit.

INQUIRY OF MR. FOZ

In reply to Mr. Foz' query on the feasibility of considering the Committee Reports at the same time, Mr. Bengzon stated that the Committee Reports would be taken up one after the other.

UNFINISHED BUSINESS: COMMITTEE REPORT NO. 18 ON THE DRAFT ARTICLE ON THE JUDICIARY

Thereafter, on motion of Mr. Rama, there being no objection, the Body resumed consideration, on Second Reading (Period of Sponsorship and Debate), of Committee Report No. 18 on the draft Article on the Judiciary.

Thereupon, the Chair recognized Mr. Concepcion for the continuation of the sponsorship.

INTERPELLATION OF MR. TADEO

Adverting to Section 14 of the draft Article, Mr. Tadeo observed that while it seeks to provide for the reglementary periods within which the cases must be decided or resolved by the Supreme Court, the lower collegiate courts and lower courts, the experience has been that the periods previously provided have not been followed. He adverted to a case filed by farmers in Negros Occidental in the Supreme Court more than twenty years ago. He stated that it appears the Supreme Court took the position that it was not bound to observe the 18 to 24 months time limit because of the absence of implementing rules and regulations to date.

In view thereof, Mr. Tadeo inquired what would be the remedy and what are the safeguards to prevent abuses in this regard.

MANIFESTATION OF MR. CONCEPCION

At this juncture, Mr. Concepcion manifested that the Members of the Committee on the Judiciary had offered to assist him in replying to certain questions in interpellation and that on the pending question, he was yielding the floor to Mr. Treñas.

Thereupon, the Chair recognized Mr. Treñas.

REPLY OF MR. TREÑAS

Mr. Treñas confirmed that he 1973 Constitution contained Section 11 (1) of the Article on the Judiciary which required the Supreme court to decide the case submitted to it within 18 months, which provision, however, was interpreted by the Court to be merely directory and this is why the Committee used the word “must” in the draft to stress the mandatory character of the provision. However, because o the prospective application of the provision, owing to the fact that, as Mr. Teehankee informed, it would be physically impossible to apply the period to cases filed in the past, Mr. Treñas stated that the Committee proposes to provide in the Transitory Provisions that the Supreme Court shall take proper steps towards the early disposition of such cases.   

As to what would be the effects of a decision rendered beyond the proposed 24-month period, Mr. Treñas adverted to Mr. Concepcion's opinion that it would constitute a violation of the Constitution. He also invited attention to Section 14(2) of the draft which provides that a case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself, and to Section 3 therein which provides that upon the expiration of the corresponding period a certification to this effect signed by the Chief Justice or Presiding Judge shall forthwith be issued and a copy thereof attached to the record of the case or matter and served upon the parties.

INTERPELLATION OF MR. MONSOD

In reply to Mr. Monsod's query on the basis of the amount equivalent to not less than two per cent of the national budget which, Section 15 provides, shall be automatically appropriated and regularly released for the Judiciary, Mr. Suarez, to whom Mr. Concepcion referred the query, stated that both Messrs. Makasiar and Teehankee strongly recommended it in order to maintain the independence of the Judiciary and that Mr. Teehankee even proposed at least 3 per cent, to which the Committee, however, did not agree because the amount based on two per cent could increase, from year to year. the important thing being that there is a fixed budget for the Judiciary to be automatically appropriated and automatically released.

Mr. Monsod observed that a fixed percentage for the Judiciary would be an arbitrary allocation that time may come when the Judiciary would have more funds that what it would need because even assuming the requirements in capital outlay for a given year, the budget is a recurring allocation from year to year. While he would agree with Mr. Suarez' suggestion that the integrity of the Chief Justice and Justices could be relied upon towards steps they would take for the reversion of excess fund to the National Treasury, Mr. Monsod suggested the institutionalization of safeguards that would ensure fiscal autonomy for the Judiciary without putting undue burden on the budget by means of an arbitrary allocation.

In reply, Mr. Suarez stated that the Committee would welcome alternative suggestions at the proper time.

Additionally, Mr. Romulo stated that the administration of justice, which, in the past had always been at the bottom of the list, should be the number one priority and that it must be pointed out to the Legislature that they often forgot this. He stressed that there could be an efficient delivery of justice through the courts without the corresponding appropriations.

By way of a rejoinder, Mr. Monsod stated that while there is no dispute on the priority of justice, there may be a dispute on the priority of services. He reiterated that the matter can be pursued in the period of amendments.

INTERPELLATION OF MR. GUINGONA

In reply to Mr. Guingona's query seeking confirmation of Mr. Treñas' staternent earlier adverting to Mr. Teehankee's observation that the Supreme Court could not possibly render a decision within the 18-month period, Mr. Romulo explained that Mr. Teehankee was not referring to the new cases and that any mandatory period should be prospective in application.

In addition, Mr. Treñas stated that Mr. Teehankee was agreeable to making it mandatory for the Supreme Court to render a decision on cases within 24 months provided that the provision would be applied prospectively.

In this connection, Mr. Concepcion informed that there are about 5,000 cases pending in the Supreme Court and about 538,000 in the lower courts. He opined that it would be impossible for the courts to reduce their backlog if the measure were made to apply to both old and new cases.

To remedy the situation, Mr. Concepcion stated that the Committee has proposed to impose a 24-month mandatory period within which the Supreme Court must render a decision but that the provision would only be with respect to new cases and that for the old ones, plans should be made to reduce the backlog not only in the Supreme Court but also in the lower courts. He stated that this would give a judge a feeling of security that the job is not beyond his capacity to handle since he would be given the means to keep up with the new cases and at the same time dispose of the old ones.

On Mr. Guingona's observation that Section 14 does not distinguish between old and new cases, Mr. Concepcion stated that there was no need for such distinction because the period provided therein refers to cases filed after the effectivity of the new Constitution.

On Mr. Guingona's suggestion that the Supreme Court first tackle the old cases in the light of the concept that justice delayed is justice denied, Mr. Concepcion stated that if each of the 1,700 judges at present would only dispose of at least one case a month, it would mean a total of 20,000 cases disposed of in the year while at the same time they are able to dispose of the newly filed cases in accordance with the new periods to be established for them.

Mr. Concepcion, however, pointed out that the proposed reorganization of the Judiciary may discourage the judges. He urged that aside from establishing the manner on how the judges may dispose of their cases, there should be a provision that no reorganization shall take place to the extent that it would affect the tenure of judges. In this regard, replying to Mr. Guingona's observation that Proclamation No. 3 provides for a one-year period for government reorganization, Mr. Concepcion stated that even with this period it would still have a deleterious effect.  

On Section 9, in reply to Mr. Guingona's query whether the Committee had taken into consideration the proposed resolution for the transfer of administrative supervision of the lower courts from the Supreme Court to the Ministry of Justice as well as the U.P. Law Constitution Project which made the same suggestion, Mr. Regalado, to whom Mr. Concepcion referred the query, stated that because of the failure of the resource persons concerned to appear, the Committee motu proprio took them into consideration in addition to the feasibility studies it made on the proposed transfer of supervision. He also stated that as far as Proposed Resolution No. 363 is concerned, the reason cited therein in support of said transfer — he refusal of the Supreme Court to be constituted as a Board of Arbitrators rendered in its decision in the case of Manila Electric Company vs. Pasay Transportation — is not applicable to the present situation.

With respect to the U.P. Law Constitution draft, Mr. Regalado stated that it is the position of the Supreme Court, as culled from opinions of legal experts and established precedents, that the practice of having the Minister of Justice supervise the lower courts is of doubtful constitutionality.

He added that the Supreme Court would not be unnecessarily burdened with the administrative problems affecting the lower courts and personnel because the main bulk of the work is handled by the Office of the Court Administrator. Mr. Regalado stated that the Judicial and Bar Council could help carry out the functions of the Supreme Court in this respect.

Mr. Regalado also adverted to the theory that the Supreme Court has the inherent judicial power to supervise the lower courts, which theory was articulated in the 1973 Constitution. He stressed that the Supreme Court's power to discipline judges necessarily carries with it the power to supervise.

At this juncture, Mr. Guingona commented, for the Record, that none of the signers of the Proposed Resolution regarding the transfer of the administrative supervision from the Supreme Court to the Ministry of Justice had been invited by the Committee to express their views.

Mr. Concepcion registered his protest to the statement and called attention to the fact that his secretary had written and personally called up the Minister of Justice at least six times but he did not appear.

Mr. Guingona clarified that he was referring to the proponents of the Proposed Resolution.

Thereupon, Mr. Guingona expressed the view that the proposed provision reiterates the decision in the case of Manila Electric Company vs. Pasay Transportation cited by Mr. Regalado except that the case made reference only to the Supreme Court and not to the lower courts. He added that the decision spoke of the Board of Arbitrators, an agency exercising administrative function, which gives rise to the question whether administrative supervision is also an administrative function.

As to whether the 24-month mandatory period was suggested by the Chief Justice or the Committee, and in the latter instance, if the Chief Justice concurred that the Supreme Court could finish both new and pending cases within the time frame, Mr. Romulo explained that Chief Justice Teehankee, reacting to the time limitation, concurred that the Supreme Court could work on the new cases but not on the old ones.

INTERPELLATION OF MS. AQUINO

Adverting to Section 2 which empowers the National Assembly to define, prescribe and apportion the jurisdiction of the various courts, Ms. Aquino inquired whether the Committee also contemplates giving it the power to add to the jurisdiction of the Supreme Court, in reply to which, Mr. Concepcion stated that there is no intention to give or withdraw any of the powers of the National Assembly as stated under Section 2 which is part of Section 1 of the 1973 Constitution.

On whether the Section also grants the National Assembly the power to abolish the courts, Mr. Concepcion explained that this is a provision of the 1973 Constitution.

On the matter of political questions or non-justiciable controversies, Mr. Concepcion explained that the Committee was worried about the inaction of the Supreme Court over some of the most important cases, on the allegation that they involve a political question and the Committee, therefore, found it necessary to define "judicial power" and "political question", Alluding to the difficulty of the Court in defining political question and cognizant of the risk involved, Mr. Concepcion stated that the Committee decided it would be best to maintain that certain questions are not political. The Committee, he said, also tried to determine whether or not there has been a great abuse of discretion amounting to lack or excess of jurisdiction. He maintained that the provision reading "Judicial power includes the duty ;of courts of justice to settle actual controversies involving rights which are legally demandable or enforceable" refers to judicial power per se. However, he stated that in a number of cases, the Court declared that it has no such power because the questions raised were political questions.

On Section 3(2), Ms. Aquino called attention to the fact that the Executive or the National Assembly needs only a small number for confirmation of its acts while to declare an act unconstitutional requires a majority plus one. While she noted that the provision is a radical departure from the 1973 Constitution which requires the votes of ten justices, she inquired if it would not be possible to limit the required number to a majority vote instead of majority plus one, in reply to which, Mr. Concepcion explained that this was the original plan but the other Members felt this was too much and agreed to the majority plus one to arrive at a consensus.

Ms. Aquino stated that she has suggested limiting the requirement to majority vote inasmuch as the function of the Judiciary is to protect individual rights and not to act as an arsenal for the exercise of legislative or executive power.

Thereafter, Mr. Concepcion called attention to Section 7(5) which reads: “Promulgate rules concerning the protection and enforcement of constitutional rights;” which was introduced upon the request of Mr. Azcuna to stress that constitutional rights are not merely declaratory but are also enforceable.

Again on the same paragraph, Ms. Aquino noted that even as the Supreme Court is given the power to initiate, the power to repeal is vested in the Legislature, to which, Mr. Concepcion replied that the Legislature may repeal but always with the advice and concurrence of the Supreme Court.

Ms. Aquino opined that in the ultimate analysis the provision would vest the two branches of the government with the power to provide the rules for the enforcement of constitutional rights and the conduct of the bar. She queried whether it would not be proper to confine the powers of the Legislature to confirmation, meaning that the Supreme Court shall have the power to initiate the Rules and the Legislature shall have the power to confirm them.

Mr. Concepcion adverted to the Constitutional provision which states that the rule-making power of the Supreme Court shall be subject to revocation, alteration and modification by the Legislature. The reason behind this, he explained, was the Committee's view that Members of the Legislature should not govern the internal operation of the Court and that said Members cannot claim knowledge on the internal workings and problems of the Court itself and how to address such problems. He maintained that the provision requires not mere concurrence but that there should be consultation.   

As to whether, in view thereof, it would have been better to vest the Legislature with the power to confirm and not with the power to repeal and revoke which has the ultimate effect of making the Legislature superior to the Judiciary, Mr. Regalado, to whom Mr. Concepcion yielded the floor, responded that what the Committee envisioned was a situation where the Supreme Court and the Legislature working hand in hand, could individually initiate, subject to each other's concurrence, the provisions of the Rules. He stressed that the Rules of Court partake of the nature of law and therefore has the effect of law. He opined that to deny the Legislature the power to repeal would be contrary to the Constitutional provision against irrepealability of laws.

As to whether Section 14(b), which provides for the issuance of the certification when the 24-month period has elapsed, would have a mandatory or directory effect and whether the court would lose jurisdiction over the case should it fail to decide said case within the time limitation, Mr. Concepcion explained that the certification required under the provision would facilitate the impeachment of the justice concerned because the certification he himself has signed would attest to his failure to comply with the Constitutional provision.

Mr. Concepcion, moreover, drew attention to the certification required upon submission of the case for decision which serves as warning to the judge that although the Constitution extends to the judge all possible facilities to enable him to discharge his duties it would, upon his failure to discharge this duty, require him to furnish evidence that he knowingly violated the Constitution.

On the matter of exempting from taxation the salary of judges, Ms. Aquino noted that the tax levied is based not on the salary but on the combined income which is commingled with the salary. As to whether such exemption is a violation of the principle of uniformity of taxation and equal protection clause, Mr. Concepcion stated that the provision would ensure the independence of the Judiciary. He stressed that taxing the salary would be indirectly decreasing the salary of the judges which could affect the independence of the Judiciary.

INTERPELLATION OF MR. LERUM

On the reason for the reduction of the number of justices from 15 in the 1973 Constitution to 11 in the proposed provision, Mr. Concepcion replied that the membership of 15 provided for in the 1973 Constitution did not help increase the output of the Supreme Court but even became a deterrent to the speedy disposition of cases. He explained that one of the reasons for reducing the number was the economic factor as it would lessen the operational cost of maintaining the courts.

On the suggestion to incorporate in the Constitution a provision that any vacancy in the Supreme Court must be filled within one or two months from the time the vacancy occurs to maintain a full complement of 15 justices, Mr. Concepcion agreed that it would theoretically enable the Supreme Court to produce more but that the volume of output would also depend upon the caliber of the people to be appointed.

As to what would happen to pending case in view of the limitation of 24 months which would encourage the Justices to devote more time to new cases and neglect old cases, Mr. Concepcion adverted to the provision requiring the Supreme Court to adopt a system to reduce the backlog. Mr. Concepcion pointed out that under the 1973 Constitution, upon expiration of the period prescribed, in a number of cases the decision appealed from would be considered affirmed and in other cases the petition would be denied, which practice had been criticized by private practitioners as unfair. He added, however, that, certain disciplinary measures had been adopted.

To underscore Mr. Concepcion's explanation, Mr. Romulo adverted to the text of the provision and cited the danger of winding up with no cases being decided on time if a mandatory period for both old and new cases is imposed.

INTERPELLATION OF MR. DE CASTRO

Mr. de Castro adverted to the current situation obtaining in the lower courts, particularly the Regional Trial Courts and Municipal Trial Courts where judges often appear late and are prone to postponing hearings. He expressed misgivings as to how the lower courts can function given this attitude of some judges. He expressed the hope that the Chairman of the Committee would bring the matter to the attention of the Chief Justice of the Supreme Court.

On the matter of double compensation in relation to Section 6(4) on the emoluments of regular members of the Judicial and Bar Council and allowances of ex-officio members, Mr. de Castro adverted to a resolution in the Committee on General Provisions which considers allowances as double compensation, in view of which, he inquired if the two provisions need reconciliation.

In reply, Mr. Romulo stated that the Committee on the Judiciary took the said resolution into account and would abide by whatever decision the Committee on General Provisions would arrive at.

Additionally, Mr. Concepcion informed that those assigned to the Judicial and Bar Council would have their hands full for many years and should therefore be entitled to transportation expenses, in reply to which, Mr. de Castro stated that the Committee General Provisions did not consider transportation expense as allowance because it is a reimbursable expense which does not go to one's pocket.    

On Section 7(3), Mr. de Castro suggested that instead of assigning temporary judges to lower courts, permanent judges should be assigned. He recalled that because of this temporary assignment, one of the cases he is handling has been under pre-trial for more than a year and a half.

On Section 7(5), Mr. de Castro informed that the Committee on Constitutional Commissions and Agencies decided that the quasi-judicial bodies decide cases within 60 days based on the rules to be submitted by them to the Supreme Court for approval. Considering, however, the time it takes the Supreme Court to approve the Rules, he suggested that the rules and procedures promulgated by the quasi-judicial bodies shall take effect until repealed, revised or amended by the Supreme Court to enable the quasi-judicial bodies to come up with a decision within the-60-day period proposed by the Committee.

INTERPELLATION OF MR. DE LOS REYES

Mr. de los Reyes observed that the proviso on the right to appeal by the State constitutes a radical departure from the usual concept of double jeopardy. He pointed out that once an accused is acquitted by the court which has jurisdiction over the case, the decision is final and an appeal by the State cannot be entertained for any reason because it will place the accused in double jeopardy. In this connection, he observed that by inserting this provision in the Report, the Committee on the Judiciary would be preempting the prerogative of the Committee on Preamble, National Territory and Bill of Rights to pass upon the question.

He suggested that the right to appeal by the State should be on the limited ground of mistrial, otherwise, he contended, once the accused is acquitted and the decision has become final, the State should not be allowed to appeal even on the ground that the acquittal was manifestly against the evidence and with grave abuse of discretion amounting to lack or excess of jurisdiction. He opined that this will work against the poor litigants who will be affected by this provision.

On his researches into the 1935 Constitutional Convention where the same question was raised, Mr. de los Reyes pointed to the observations raised by Delegate Gullas, which he stated, resulted in denying the State the right to appeal.

He cited the case of a poor laborer who, though lucky to have been acquitted; had a millionaire adversary who hired a top-notch lawyer to prepare a petition for certiorari. In this case, he stated that instead of enjoying his freedom after having languished in jail for two years, the laborer was again exposed to the jeopardy of being convicted because of an appeal by the State. Mr. de los Reyes also pointed out that pending appeal, the judgment does not become final and the accused will continue to languish in jail. Assuming that the accused will be set free, he stated that the temptation to flee becomes very great because he does not know whether he will again be convicted or not.

He stressed that the mischief sought to be prevented by allowing the State to appeal due to occasional mistakes of the lower courts in acquitting a guilty person is nothing compared to the mischief and injustice that the poor accused will suffer. He maintained that this could open the gates to endless appeals and thus dog the dockets of the Supreme Court which will be hard put in determining even preliminarily the existence of a ground that the decision was manifestly against the evidence and with grave abuse of discretion.

Finally, Mr. de los Reyes underscored the controlling considerations: 1) the inequality of the parties in power, situation and advantage in criminal cases where the government, with its unlimited resources, trained detectives, willing officers and counsels learned in the law, stands arrayed against a single defendant unfamiliar with the practice of the courts, unacquainted with their officers or attorneys and often without means and frequently too terrified to make a defense while his character and his life, liberty or property rest upon the result of the trial; and 2) adverting to the case of Greene vs. United States, “the State, with all its resources and powers, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.”

Mr. de los Reyes then expressed the hope that with all his observations, the Committee would reconsider its proposal to allow the State to appeal.

Thereupon, Mr. Padilla, to whom Mr. Concepcion referred the remarks, adverted to Rule 122(2) of the 1964 Rules of Court, now Rule 122(2) of the 1985 Rules on Criminal Procedure, which states that "any party may appeal from a final judgment or order except if the accused would be placed thereby in double jeopardy."

Citing the case of People vs. Veridiano, 113 SCRA 64, Mr. Padilla stated that the respondent Judge reversed the City Court judgment of conviction acquitting Mr. Veridiano on the ground that his liability to the complainant was purely civil in nature and directed him to comply with the civil obligation to return to the complaining witness the sum of six thousand pesos. He stated that the Fiscal appealed the decision directly to the Supreme Court and was required to file the appropriate petition under RA No. 5440, which superseded Rule 42 and Rule 122(1) in the sense that an appeal to the Supreme Court on a question of law is no longer a matter of right. In said case? the Court held that it had the discretion to give due course to the appeal or deny it outright. He also stated that even under the present law, an appeal may be had by the State or by the Fiscal when the lower court has no jurisdiction. He explained that when there is a question of error of jurisdiction, the remedy is by certiorari, as distinguished from an error of judgment which is not covered by petitions for certiorari.

Mr. Padilla also cited the case of U.S. vs. Kepner wherein Justice Holmes stated that "it seems that, logically and rationally, a man cannot be said to be more than once in jeopardy in the same case, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause." He stressed that these observations by Justice Holmes has been recognized in the 1985 Rules on Criminal Procedure, Rule 117, Section 7 on former conviction or acquittal and double jeopardy.

Mr. Padilla pointed out that under the new provisions of the 1985 Rules on Criminal Procedure, the conviction of the accused shall not be a bar to the prosecution of an offense which necessarily includes the offense charged in the former complaint or information under any of the three instances provided, among which is that the graver offense developed due to intervening facts arising from the same act or omission constituting the former charge.

Quoting the opinion of Justice Holmes in the Kepner case which says "the Constitution permits a second trial in the same case", Mr. Padilla maintained that there can be but one jeopardy in one case and while the said opinion in its conclusion speaks of a new trial, he pointed out that the proposed Article is limited only to an appeal by petition for review on certiorari already based on the record without further proceedings. This opinion of Justice Holmes, he stated, was a dissenting opinion that became a majority opinion in a decision penned by Justice Cardoso in the case of Palco vs. Connecticut, 302 US 319 which challenged the validity of "a statute of Connecticut permitting appeals in criminal cases to be taken by the state."

Mr. Padilla, stated that the Palco decision discussed extensively the basic principles of the United States Constitution, such as immunity from double jeopardy; right against self-incrimination, right to peaceably assemble, due process and other privileges and immunities in the Federal Constitution.

Relative thereto, Mr. Padilla pointed out that when a case is submitted for judgment by a trial judge, there is a presumption that the judgment is in accordance with the evidence and the law, although there are few and rare instances when a judge, for some extraneous reasons, renders a questionable decision, like acquittal. It was for this reason, he stated, that the Committee felt that an appeal should be allowed only 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 with grave abuse of discretion amounting to lack or excess of jurisdiction, with the end in view that this proposal would lead to a good and sound administration of justice and serve as a deterrent against corrupt judges.    

Mr. Padilla admitted that in the course of a criminal trial, both parties are given the opportunity to present evidence and any decision rendered would elicit a diversity of opinions. He pointed out that the provision does not allow the State nor the offended party an absolute right to appeal on the ground that it provides restrictive grounds which could be the basis for a petition for review on certiorari, depending on the discretion of the Supreme Court.

Mr. Padilla stressed that the complainant is entitled to justice as much as the accused and he took exception to the observation that, in general, the offended party is rich while the accused is poor, pointing out that the real situation is the reverse.

Finally, on the question of whether an appeal by certiorari constitutes double jeopardy, Mr. Padilla maintained that double jeopardy refers to a separate trial while an appeal, in the words of Justice Holmes, is not a separate trial but a continuation of the same case.

At this juncture, Mr. de los Reyes manifested his desire to make a rejoinder to the comments of Mr. Padilla, to which Mr. Rama suggested that he could do so during the period of amendments in view of the reservation of Mr. Ople.

Mr. Ople, however, yielded a minute of his time to Mr. de los Reyes, in view of which the Chair allowed the rejoinder.

REJOINDER OF MR. DE LOS REYES

By way of a rejoinder, Mr. de los Reyes pointed out that in the case cited, there was some kind of a mistrial because the State was not afforded the opportunity to present its evidence completely.

On the other hand, Mr. de los Reyes argued that the provision contemplates a case where both parties are given all the opportunity to present evidence and after the appreciation of said evidence, the accused is acquitted. He cited the case of People vs. Montemayor, 26 SCRA 687 where the Supreme Court reaffirmed that the constitutional guarantee against double jeopardy is an insuperable obstacle to the State appealing from a judgment of acquittal.

INTERPELLATION OF MR. OPLE

Mr. Ople prefaced his interpellation with the observation that the proposed Article on the Judiciary accords the Supreme Court, the lower courts and the entire judicial system a whole plethora of privileges and immunities that are denied to the rest of the government of the Republic, the reason being that it contains a bold assumption of executive and legislative powers.

Mr. Ople, while sharing the concern expressed by Mr. Concepcion on the invasion of the Executive and the Legislative on the independence of the Judiciary, pointed out that the citizens, especially the government employees, might think that in trying to erect a bastion of justice, the Commission might end up erecting a fortress of privileges, an island of extra-territoriality, in the sense that a good number of powers and rights accorded to the judiciary may not be enjoyed in the remotest degree by them.

In support of his observation, Mr. Ople cited the proposed tax exemption on the salary of judges which he described as a kind of economic immunity denied to the Executive and the Legislature. He likewise called attention to the automatic appropriation built into the Article which provides two per cent of the national budget for the Judiciary, despite the fact that the power to appropriate is exclusively reserved for the Legislature.

Mr. Ople noted that there is a tendency to equate judicial independence with certain immunities and privileges for the courts to such a degree that could raise the question of equity and justice from government employees in general.

On the provision requiring the Chief Justice of the Supreme Court to address the National Assembly on the opening of its regular session, Mr. Ople believed that this would elevate the courts to the same prominence and majesty as that of the Chief Executive of the Republic.   

Mr. Ople expressed reservations on the provisions requiring the advice and concurrence of the Supreme Court before the National Assembly could exercise its lawmaking powers in formulating or amending the Rules of Court. He opined that this would be a diminution of the legislative power which should remain unimpaired.

Finally on Section 2, which restrains the Legislature from exercising its authority to reorganize the government where the security of tenure of the Judiciary might be impaired, Mr. Ople suggested that the security of tenure be dissociated from the exercise of legislative power. He stressed that although there should be a strong guarantee of security of tenure, it must not be placed in such a way as to tie the hands of the Legislature, which action, he considered a very inappropriate intrusion into the field of lawmaking.

Thereupon, responding to the queries of Mr. Ople, on the proposal to revert the administrative super- vision of the courts to the Executive department but with due protection against interference on substantive functions, Mr. Concepcion stated that the Members of the Committee took cognizance of one of the major infirmities in the administration of the Judiciary which is the political intervention in the operation of the courts.

He cited an instance when the Department of Justice was asked to increase the number of judges in the Court of First Instance, and the Supreme Court was told to organize additional branches. He recalled that a new branch could not operate because there was no Clerk of Court, a vacancy having arisen because of the insistence of a Congressman from the province to appoint a pharmacist to the position.    

In this regard, Mr. Ople expressed regret that the Minister of Justice, who could have aired the advantages of the proposal, failed to come because, as stated by Mr. Guingona, his coming might be misinterpreted as an attempt to influence the Constitutional Commission.

At this juncture, Mr. Guingona clarified that when asked by Mr. Ople as to why Minister Gonzales failed to come, he stated that Cabinet Ministers, without particular reference to Minister Gonzales, were reluctant to come because of the desire expressed by the President not to influence, directly or indirectly, the Constitutional Commission.

Mr. Rama then observed that the matter of non-appearance of some Cabinet Ministers in Committee meetings had been sufficiently explained by Mr. Regalado.

TERMINATION OF THE PERIOD OF SPONSORSHIP AND DEBATE

Thereafter, on motion of Mr. Rama, there being no objection, the Body closed the period of sponsorship and debate on the draft Article on the Judiciary.

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 Monday, July 14, 1986.

It was 12:08 p.m.

I hereby certify to the correctness of the forgoing.

(SGD.) FLERIDA RUTH P. ROMERO
Secretary-General

ATTESTED:

(SGD.) CECILIA MUÑOZ PALMA
             President

Approved on July 14, 1986