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[ VOL. I, July 10, 1986 ]
R.C.C. NO. 27
OPENING OF SESSION
At 3:10 p.m. the President the Honorable Cecilia Muñoz Palma opened the session.
THE PRESIDENT: The session is called to order.
NATIONAL ANTHEM
THE PRESIDENT: Everybody will please rise to sing the National Anthem.
Everybody rose to sing the National Anthem.
THE PRESIDENT: Everybody will please remain standing for the Prayer to be led by the Honorable Christine A. Tan.
Everybody remained standing for the Prayer.
PRAYER
SR. TAN: Good Father, we are pressured and sometimes tense. Show us how to keep the space in our heart where You will be able to show Yourself, and when You do, show Yourself beyond reason and law. Give us the simplicity to recognize You and to act accordingly. Amen.
ROLL CALL
THE PRESIDENT: The Secretary-General will please call the roll.
THE SECRETARY-GENERAL, reading:
The President is present.
The roll call shows 42 Members responded to the call.
THE PRESIDENT: The Chair declares the presence of a quorum.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: I move that we dispense with the reading of the Journal of yesterday's session.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
APPROVAL OF JOURNAL
MR. RAMA: Madam President, I move that we approve the Journal of yesterday's session.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none: the motion is approved.
MR. RAMA: Madam President, I move that we proceed to the Reference of Business.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none the motion is approved.
The Secretary-General will read the Reference of Business.
REFERENCE OF BUSINESS
The Secretary-General read the following Proposed Resolutions on First Reading, Communications and Committee Reports the President making the corresponding references:
PROPOSED RESOLUTIONS ON FIRST READING
Proposed Resolution No. 458, entitled:
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 459, entitled:
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 460, entitled:
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 461, entitled:
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 462, entitled:
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 463, entitled:
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 464, entitled:
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 465, entitled:
To the Committee on Human Resources.
Proposed Resolution No. 466, entitled:
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 467, entitled:
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 471, entitled:
To the Committee on Human Resources.
Proposed Resolution No. 472, entitled:
To the Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights.
COMMUNICATIONS
Letter from Bulacan Social Action Movement signed by Mr. Tirso G. Robles, Jr., proposing a provision mandating the Legislature to enact laws on socialized medicine.
(Communication No. 161 — 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 the 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 rights.
(Communication No. 162 — 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 poor.
(Communication No. 163 — 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 justice.
(Communication No. 164 — 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 Fund.
(Communication No. 165 — 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 32 others, requesting the inclusion of provisions on environmental protection from pollution, deforestation and unscrupulous gathering of corals.
(Communication No. 166 — Constitutional Commission of 1986)
To the Committee on the 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 1,181 others, proposing a separate article on education, labor and employment, housing and agrarian and urban land reform.
(Communication No. 167 — 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."
(Communication No. 168 — Constitutional Commission of 1986)
To the Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights.
COMMITTEE REPORTS
Committee Report No. 18, prepared by the Committee on the Judiciary, entitled:
ARTICLE ON THE JUDICIARY,
recommending its approval.
Sponsored by 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:
Sponsored by Hon. Foz, Rigos and Regalado.
To the Steering Committee.
Committee Report No. 20 on Proposed Resolution No. 469, prepared by the Committee on Constitutional Commissions and Agencies, entitled:
Sponsored by Hon. Foz, Jamir and Monsod.
To the Steering Committee.
Committee Report No. 21 on Proposed Resolution No. 470, prepared by the Committee on Local Governments, entitled: ,
Sponsored by Hon. Nolledo, Calderon, Tingson, Rosales, Alonto, de Castro, Bennagen, Rigos, Regalado, Jamir and Ople.
To the Steering Committee.
Committee Report No. 22, prepared by the Committee on the Legislative, entitled:
ARTICLE ON THE NATIONAL ASSEMBLY,
recommending its approval.
Sponsored by Hon. Davide, Jr., Azcuna, Abubakar, Alonto, Aquino, Calderon, Concepcion, de los Reyes, Jr., Garcia, Guingona, Jamir, Lerum, Rodrigo, Sumulong and Treñas.
Cosponsored by Hon. Villacorta, Romulo, Regalado Foz, Gascon, Tingson, Monsod, Rigos and Sarmiento.
To the Steering Committee.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: I move that we consider the proposal on the Article on National Territory, and I ask that Commissioner Bengzon be recognized.
THE PRESIDENT: Commissioner Bengzon is recognized.
RECONSIDERATION OF VOTE ON THIRD READING ON PROPOSED RESOLUTION NO. 263
(Article on National Territory)
MR. BENGZON: Madam President, I move for a reconsideration of the vote on Third Reading that took place last night on the Article on National Territory.
THE PRESIDENT: Is there any objection to the motion of Commissioner Bengzon that the voting on Third Reading which was held last night be reconsidered? (Silence) The Chair hears none; the motion is approved.
SUSPENSION OF THE RULES
MR. BENGZON: Madam President, I also move for the suspension of the Rules in order to bring back the status of the Article on National Territory to Second Reading for the sole purpose of accommodating one amendment to change a phrase which presently reads: "all the other territories over which the government exercises sovereign jurisdiction" into the phrase "all other territories over which the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction."
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
MR. RAMA: Madam President, I ask that Commissioner Bernas be recognized.
THE PRESIDENT: Commissioner Bernas is recognized.
FR. BERNAS: Madam President, pursuant to the motion for the suspension of the Rules for the very exclusive purpose of inserting a change in the controversial phrase, I would like to propose that present amendment. We have in the text which was voted on yesterday the phrase starting on the third line which reads "and all the other territories over which the government exercises sovereignty or jurisdiction." The changes proposed would be: in place of the word "government," we put PHILIPPINES; in place of the word "exercises," we put HAS; in place of the word "sovereign," we put SOVEREIGNTY, and then we add OR. Thus, the amended phrase would read: "and all the other territories over which the PHILIPPINES has SOVEREIGNTY OR jurisdiction." And the explanation, if I may be allowed, is; on the change from "government" to PHILIPPINES, this is a recognition of the recommendation made by Commissioner Padilla that instead of "government" we use PHILIPPINES; on the change from "exercises" to HAS, this is in recognition of the sole objection of Commissioner Concepcion to this Article. The word HAS is of a broader application than "exercises." As explained by Commissioner Concepcion yesterday, one can continue to have jurisdiction over a territory even if it is physically wrested from him, whereas, in order to acquire a territory, one must exercise jurisdiction over it. But one does not lose a territory simply because he has lost the physical exercise of jurisdiction. One still continues to have jurisdiction even if he has lost effective exercise. The example given yesterday was that the jurisdiction over the Philippines when Japan was exercising control over the Philippines was not lost.
So, with these, may I repeat, the phrase will now be: "and all the other territories over which the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction."
THE PRESIDENT: So, the parliamentary situation right now is, first of all, the suspension of the Rules in order to allow this proposed amendment.
MR. NOLLEDO: Madam President.
THE PRESIDENT: Yes.
Is there any objection? May I please proceed first?
MR. NOLLEDO: Yes.
THE PRESIDENT: Is there any objection for the suspension of the Rules for the sole purpose stated by Commissioner Bernas? (Silence) The Rules then are suspended for this particular purpose and the remarks of Commissioner Bernas are taken into account.
MR. NOLLEDO: Madam President.
THE PRESIDENT: Commissioner Nolledo is recognized.
MR. NOLLEDO: Thank you.
On behalf of the Committee on Preamble, National Territory, and Declaration of Principles, I would like to manifest that the members of the Committee gladly accept the amendments of Commissioner Bernas and we commend his high sense of statesmanship.
THE PRESIDENT: Thank you.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
MR. DAVIDE: Will the distinguished sponsor of the amendment yield to some clarificatory questions?
THE PRESIDENT: What does Commissioner Bernas say?
FR. BERNAS: Very willingly.
MR. DAVIDE: Madam President, under the new proposed amendment, would "SOVEREIGNTY" mean past and present sovereignty?
THE PRESIDENT: The question is addressed to Commissioner Bernas.
MR. DAVIDE: Yes. Would the word "SOVEREIGNTY" in the new proposed amendment mean either past sovereignty or present sovereignty?
FR. BERNAS: It certainly would mean present sovereignty.
MR. DAVIDE: As well as past sovereignty?
FR. BERNAS: It would not refer to past sovereignty because if sovereignty is past that means it has been lost.
MR. DAVIDE: In other words, the import is just the same as the original proposal?
FR. BERNAS: No, the change in import is in the change of the word "exercises" to HAS.
MR. DAVIDE: So, "HAS SOVEREIGNTY OR jurisdiction"?
FR. BERNAS: Yes.
MR. DAVIDE: Nevertheless, the meaning again of "HAS SOVEREIGNTY" would only be present sovereignty, not past sovereignty?
FR. BERNAS: Yes, that would be true because if, as I said, sovereignty is past, it is lost; it is gone; one does not have it.
MR. DAVIDE: In other words, I would repeat, the import of the new proposal is just the same as the original proposal?
FR. BERNAS: No, I would say, it is not because the difference is in the word HAS. The original proposal could be understood to mean that if one is unable physically to exercise control, then he loses the territory; whereas, in the new proposal, even if one is unable to exercise the control, he continues to have the sovereignty. Let me give an example.
MR. DAVIDE: Would the proponent give an example on the matter of Sabah?
FR. BERNAS: Let me choose my own example.
MR. DAVIDE: Can the example not be extended to Sabah?
FR. BERNAS: Let me first give my own example since I am the one giving the example.
MR. DAVIDE: Yes. We will accommodate that, Madam President.
FR. BERNAS: Let us take the example of Batanes. We have jurisdiction over Batanes. We are actually and physically exercising sovereignty and jurisdiction over Batanes. Let us suppose that tomorrow, a very powerful force overcomes our government in Batanes and deprives us of control over that area. We continue to have jurisdiction over it even if the invading force may be able to impose its laws on it by force. We have jurisdiction, but temporarily we are unable to exercise jurisdiction.
MR. DAVIDE: Since the meat of the original proposal and the present proposal would precisely be on the issue of Sabah . . .
FR. BERNAS: On-the issue of Sabah now, Sabah would be included, if it can be proven that we have sovereignty or jurisdiction.
MR. DAVIDE: So, our historic right or legal title to Sabah would now be dropped.
FR. BERNAS: No, it is not being dropped. It is being left unsettled by us because we are not a judicial body capable of passing judgment on a factual issue.
MR. DAVIDE: In other words, to be very clear about it, under the present wording, we have not foreclosed any claim over Sabah because we have historic title over it?
FR. BERNAS: We have not foreclosed any claim to Sabah, period. Neither are we saying that we have.
MR. DAVIDE: That becomes more confusing.
I thank the proponent and thank you, Madam President.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: There are no more interpellators.
THE PRESIDENT: Commissioner de Castro is recognized.
MR. DE CASTRO: May the Honorable Bernas yield to a few questions?
FR. BERNAS: Very gladly.
MR. DE CASTRO: As I get it, we have not foreclosed, as the proponent has said, our claim over Sabah with this phrase "the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction." Am I correct?
FR. BERNAS: We are not making any claim over Sabah. We are not dropping any claim. This prescinds any claim.
MR. DE CASTRO: So, we are not making any claim nor dropping any claim?
FR. BERNAS: No, we are prescinding from any uncertain claim.
MR. DE CASTRO: We are, therefore, losing our historic right or legal title over Sabah. Am I correct?
FR. BERNAS: In my humble opinion, the Gentleman is not correct.
MR. DE CASTRO: Why?
FR. BERNAS: Because we can always claim it under international law. There are accepted modes of establishing a claim over a territory under international law and I am sure that our Constitution will uphold the generally accepted principles of international law.
MR. DE CASTRO: In short, with this proposal on the Article on National Territory, as well as the sponsor's amendment now, we are dropping our claim over Sabah and we leave it to international law to settle our claim on it. Am I correct?
FR. BERNAS: My position is: We are not interfering with whatever the executive department might do about the claim over Sabah.
MR. DE CASTRO: May I know the reason why we dropped the words "historic right or legal title" contained in the Article on National Territory of the 1973 Constitution?
FR. BERNAS: If I will be allowed to repeat what we have repeated over and over again in this session hall, I will repeat the reasons.
MR. DE CASTRO: I ask this because before this amendment, when the phrase was still "government exercises sovereign jurisdiction," the sponsor insisted that we are not dropping our claim over Sabah with that phrase. That is why I am now asking why we are dropping our claim per the sponsor's explanation.
FR. BERNAS: I already said we are not dropping any claim.
MR. DE CASTRO: The sponsor is not dropping any claim but he leaves this claim to be settled under international law and not state it on the provision on National Territory, am I correct?
FR. BERNAS: I said I am prescinding from any claim which may have been made by the government of the Philippines. It is not a question of dropping or continuing; it is a question of prescinding — P-R-E-S-C-I-N-D-I-N-G.
MR. DE CASTRO: Madam President, we are playing with words here. Frankly and forthrightly, why do we not state that we are claiming or we are abandoning our claim? Why play with words?
Thank you.
THE PRESIDENT: Commissioner Abubakar is recognized.
MR. ABUBAKAR: I just want to ask one simple question that requires a simple answer. Has the Philippines ever acquired jurisdiction over Sabah? I mean, within the context of the term "jurisdiction."
FR. BERNAS: We are not answering that question here; we are prescinding from that question here.
MR. ABUBAKAR: But we spoke of jurisdiction. Why are we afraid to face the issue and not answer the question if ever we have acquired jurisdiction over Sabah?
FR. BERNAS: Because I am. not in a position to answer the factual issues of the case. The complicated issues of the case are factual. We have not been given the documents for us to examine. How can we make a judgment over that?
We believe that if we have to make a judgment, it must be a judgment with due process. And due process is a process which decides only after hearing. We have not heard; we have not seen the evidence.
MR. ABUBAKAR: In other words, from the sponsor's reply and from his knowledge and whatever evidence we heard, he does not put in the Record that the Philippines has acquired jurisdiction over Sabah?
FR. BERNAS: We are not.
MR. ABUBAKAR: Thank you.
MR. GUINGONA: Madam President.
THE PRESIDENT: Commissioner Guingona is recognized.
MR. GUINGONA: The honorable Members of this Commission will perhaps recall that last night, I objected to the motion for reconsideration and made a manifestation that today I would make a motion to recommit the Article on National Territory to the committee concerned But this morning, after consultation, I agreed not to object and not to present any motion. However, may I say that I find it unfortunate that the question regarding sovereignty has to be raised. I had the occasion to read the statement of Messrs. Kaplan and Katzenbach wherein, speaking of sovereignty, they said:
There is no more confusing concept in international law than sovereignty. It has been viewed indiscriminately in a number of different meanings by decision-makers and scholars alike.
I regret that we have to distinguish sovereignty, whether it is past, present or future, because 200 years from now, if the Philippines were to acquire a territory and if we follow the interpretation given here that sovereignty refers to present sovereignty, then it would appear we cannot claim sovereignty over the territory that we will acquire 200 years from now because the wording here is "HAS SOVEREIGNTY," and it only refers to the present; it is used in the present tense.
So, I regret very much that this has to be opened. I had hoped that we would let the word "SOVEREIGNTY" remain as it is without the necessity of further interpretation or construction.
Thank you, Madam President.
FR. BERNAS: Madam President, just a word of reply, please.
THE PRESIDENT: Yes, Commissioner Bernas may do so.
FR. BERNAS: In my reply to the interpellation of Commissioner Davide, the only thing I excluded was past sovereignty. I did not exclude whatever we might have in the future; I did not exclude whatever we may have in the future.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: The amendment has been sufficiently debated and none has registered to further interpellate. So, I move that we take a vote on the amendment of Commissioner Bernas.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
We will now proceed to take a vote on the amendment of Commissioner Bernas.
FR. BERNAS: The phrase to be added in substitution will be: "all the other territories over which the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction."
VOTING
THE PRESIDENT: Those in favor of the proposed amendment, please raise their hand. (Several Members raised their hand.)
Those against the proposed amendment, please raise their hand. (Few Members raised their hand.)
The results show 38 votes in favor of the amendment and 2 against; the amendment is, therefore, approved.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: Madam President, I move that we close the period of amendments on the Article on National Territory.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
MR. RAMA: Madam President, I move that we proceed to the voting on Third Reading on the Article on National Territory.
MR. DAVIDE: Madam President.
THE PRESIDENT: Yes, Commissioner Davide is recognized.
MR. DAVIDE: I think a voting on Third Reading will not be proper at this time because we have just reopened the period of amendments to accommodate one amendment. So, we must first have a voting on Second Reading, not on Third Reading.
THE PRESIDENT: What we have just finished is the voting on the proposed amendment of Commissioner Bernas.
APPROVAL OF PROPOSED RESOLUTION NO. 263 ON SECOND READING
(Article on National Territory)
MR. RAMA: Madam President, to accommodate Commissioner Davide, I move that we approve on Second Reading the Article on National Territory, as amended.
THE PRESIDENT. Those in favor of the approval on Second Reading of the whole Article on National Territory, as amended, please raise their hand. (Several Members raised their hand.)
Those against, please raise their hand. (Few Members raised their hand.)
The results show 39 votes in favor, 3 against and no abstention; the Article on National Territory, as amended, is approved on Second Reading.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Bengzon be recognized..
THE PRESIDENT: Commissioner Bengzon is recognized.
SUSPENSION OF THE RULES
MR. BENGZON: Madam President, I move for the suspension of the Rules so that we can vote on Third Reading on the Article on National Territory.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
NOMINAL VOTING ON PROPOSED RESOLUTION NO. 263 ON THIRD READING
(Article on National Territory)
MR. RAMA: Madam .President, I move that we vote on Third Reading on Proposed Resolution No. 263.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
Printed copies of Proposed Resolution No. 263 were distributed on July 8, 1986, pursuant to Section 27, Rule VI of the Rules of the Constitutional Commission.
Voting on the proposed resolution on Third Reading is, therefore, in order.
The Secretary-General will read the title of the proposed resolution.
THE SECRETARY-GENERAL: Proposed Resolution No. 263, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON NATIONAL TERRITORY.
FIRST ROLL CALL
THE PRESIDENT: The body will now vote on this resolution and the Secretary-General will call the roll.
THE SECRETARY-GENERAL, reading:
MR. DE CASTRO: Madam President.
THE PRESIDENT: Commissioner de Castro is recognized.
MR. DE CASTRO: May I explain my vote?
THE PRESIDENT: Commissioner de Castro has three minutes to explain his vote.
COMMISSIONER DE CASTRO EXPLAINS HIS VOTE
MR. DE CASTRO: Madam President, I vote no, be- cause whatever play of words we have in this Article on National Territory, our country would, in effect, drop its claim to Sabah and to any territory it may want to claim in the future, as stated by Commissioner Guingona. We should also have given the Executive the opportunity to have a hand in so delicate and important an issue like our claim to Sabah. My remarks last night stand.
Thank you, Madam President.
THE SECRETARY-GENERAL, reading:
MR. DAVIDE: Madam President, may I be allowed to explain my vote very briefly.
THE PRESIDENT: Commissioner Davide has three minutes.
COMMISSIONER DAVIDE EXPLAINS HIS VOTE
MR. DAVIDE. My vote is no, because I am unable to perceive the difference between the original and modified Bernas' amendment. Both amount to the same thing.
THE SECRETARY-GENERAL, reading:
MR. GUINGONA: Madam President, may I be allowed to explain my vote.
THE PRESIDENT: Commissioner Guingona has three minutes.
COMMISSIONER GUINGONA EXPLAINS HIS VOTE
MR. GUINGONA: Thank you, Madam President.
First of all, I wish to thank Commissioner Bernas for partially accepting my suggestion of changing "sovereign jurisdiction" to "sovereignty or jurisdiction " or "title." I was hoping that even with the non-acceptance of the third word, I might be able to vote in favor, but because of the manifestation made during the interpellations by the honorable Commissioner Davide, notwithstanding my view that the interpretation is not binding, I am constrained to vote no.
THE SECRETARY-GENERAL reading:
SECOND ROLL CALL
THE PRESIDENT: The Secretary-General will conduct a second call for those who have not registered their votes.
THE SECRETARY-GENERAL, reading:
APPROVAL OF PROPOSED RESOLUTION NO. 263 ON THIRD READING
(Article on National Territory)
THE PRESIDENT: The results show 39 votes in favor, 4 against and no abstention.
Proposed Resolution No. 263 is approved on Third Reading. *
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
NOMINAL VOTING ON PROPOSED RESOLUTION NO. 7 ON THIRD READING
(Article on Citizenship)
MR. RAMA: I move that we vote on Third Reading on Proposed Resolution No. 7.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
Printed copies of Proposed Resolution No. 7 were distributed on July 9, 1986 pursuant to Section 27, Rule VI of the Rules of the Constitutional Commission.
Voting on the proposed resolution is, therefore, in order.
The Secretary-General will read the title of the proposed resolution.
THE SECRETARY-GENERAL: Proposed Resolution No. 7, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON CITIZENSHIP.
FIRST ROLL CALL
THE PRESIDENT: The body will now vote on this proposed resolution and the Secretary-General will call the roll.
THE SECRETARY-GENERAL, reading:
SECOND ROLL CALL
THE PRESIDENT: The Secretary-General will conduct a second call for those who have not registered their votes.
THE SECRETARY-GENERAL, reading:
APPROVAL OF PROPOSED RESOLUTION NO. 7 ON THIRD READING
(Article on Citizenship)
THE PRESIDENT: The results show 36 votes in favor, 5 against and no abstention.
Proposed Resolution No. 7 is approved on Third Reading. *
SUSPENSION OF SESSION
THE PRESIDENT: The session is suspended.
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.
THE PRESIDING OFFICER (Mr. Azcuna): The session is resumed.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: Mr. Presiding Officer, I ask that the Chairman of the Steering Committee be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bengzon is recognized.
MR. BENGZON: It is a pleasant surprise, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bengzon may proceed.
MR. BENGZON: May I call the attention of the Members of this Commission that in the Order of Business yesterday, Committee Report No. 18, the draft Article on the Judiciary, was included and a separate sheet was distributed to each Commissioner making the committee report as an additional Reference of Business. It is supposed to have been included in the Calendar of Business so that it could be taken up today, but due to an oversight of the Bills and Index Division, Committee Report No. 18 was not included in the Business for the Day. For this reason, since the Rules has been followed and we agreed informally yesterday that this will be taken up for sponsorship, interpellations and, possibly, for amendments, and considering further that the Chairman and the members of the Committee on the Judiciary are ready to sponsor this committee report, I move that we consider Committee Report No. 18 as part of the Business for the Day so that we can proceed to its consideration.
A MEMBER: I second the motion.
THE PRESIDING OFFICER (Mr. Azcuna): It has been moved and seconded that Committee Report No. 18 on the Judiciary be taken up on Second Reading as part of the Business for the Day.
Is there any objection? (Silence) The Chair hears none; the motion is approved.
CONSIDERATION OF COMMITTEE REPORT NO. 18
(Article on the Judiciary)
PERIOD OF SPONSORSHIP AND DEBATE
MR. BENGZON: Mr. Presiding Officer, I move that we consider Committee Report No. 18 on Proposed Resolution Nos. 14, 18, 52, 75, 78,112, 115, 140, 143, 146, 147, 153, 204, 236, 259, 275, 292 and 313 as reported out by the Committee on the Judiciary.
THE PRESIDING OFFICER (Mr. Azcuna): Is there any objection? (Silence) The Chair hears none; the motion is approved.
Consideration of Committee Report No. 18 is now in order. With the permission of the body, the Secretary- General will read only the title of the committee report without prejudice to inserting in the Record the whole text thereof.
THE SECRETARY-GENERAL: Committee Report No. 18, entitled:
ARTICLE ON THE JUDICIARY.
(The following is the whole text of the draft Article on the Judiciary per C.R. No. 18.)
COMMITTEE REPORT NO. 18
The Committee on the Judiciary to which were referred the following proposed resolutions:
Proposed Resolution No. 14, introduced by Hon. de los Reyes, entitled:
RESOLUTION TO PROVIDE FOR A CONSTITUTIONAL WRIT OF AMPARO,
Proposed Resolution No. 52, introduced by Hon. Guingona, entitled:
Proposed Resolution No. 153, introduced by Hon. Romulo, entitled:
Each proposed resolution accepted by the Committee was not considered and amended on a line-by-line basis. Rather, the Committee adopted the basic concept or substance of the proposed resolutions and embodied it in the attached draft of the Article on the Judiciary. Thus, in this report, we indicated hereunder in which section of the proposed Article on the Judiciary a particular proposed resolution is reflected.
We have recommended to the Committee on Transitory Provisions the following:
"Section _____. The Supreme Court shall adopt for itself and the lower courts a systematic plan to expedite the decision or resolution of cases or matters filed with the Supreme Court or the lower courts prior to the effectivity of this Constitution."
"Section _____. All courts existing at the time of the ratification of this constitution shall continue and exercise their jurisdiction, until otherwise provided by law in accordance with this constitution, and all cases pending in said courts shall be heard, tried, and determined under the laws then in force. The provisions of the existing rules of court not inconsistent with this constitution shall remain operative unless amended, modified, or repealed by the Supreme Court or the National Assembly."
The Committee hereby gratefully acknowledges the valuable contribution of the various resource persons who either appeared in person or submitted position papers.
(Sgd.) Roberto R. Concepcion
Chairman
Committee on the Judiciary
ARTICLE _______
THE JUDICIARY
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes 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.
SECTION 2. The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 7 hereof.
No law shall be passed reorganizing the judiciary when it undermines security of tenure.
SECTION 3. (1) The Supreme Court shall be composed of a Chief Justice and ten Associate Justices. It may sit en banc or in two divisions.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard and decided by the Supreme Court en banc, and no treaty, international or executive agreement, or law may be declared unconstitutional without the concurrence of a majority plus one of the members who actually participated when the case was submitted for decision. The same number of votes shall be required for the imposition of the death penalty.
(3) All other cases including those involving the application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations which under the rules of court are required to be heard en banc shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision.
(4) Cases heard by a division shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision but if such required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
SECTION 4. (1) No person shall be appointed member of the Supreme Court unless he is a natural-born citizen of the Philippines, at least forty years of age, and has for fifteen years or more been a judge of a lower court or engaged in the practice of law in the Philippines.
(2) The National Assembly shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a natural-born citizen of the Philippines and a member of the Philippine Bar.
SECTION 5. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by a Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
SECTION 6. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the
Chief as ex-officio Chairman, the Minister of Justice and a representative of the National Assembly as ex-officio members, a representative of the integrated bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector.
(2) The regular members of the Council shall be appointed by the President for a term of four years. Of the members first appointed, the representative of the integrated bar of the Philippines shall serve for four years, the professor of law for three years, the retired justice for two years, and the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex-officio and shall keep a record of the proceedings of the Council.
(4) The regular members of the Council shall receive such emoluments, and the ex-officio members shall receive such allowances, as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.
(5) The Council shall have the principal function of recommending appointee to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
SECTION 7. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the rules of court may provide, final judgments and decrees of lower courts in —
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, ordinance, executive order, proclamation, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is death or life imprisonment.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations public interest may require. Such temporary assignment shall not last longer than six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall take effect upon approval by the Supreme Court.
(6) Appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
SECTION 8. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial and/or administrative functions.
SECTION 9. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
SECTION 10. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by the vote of a majority plus one of the Members who actually participated when the matter was submitted for resolution.
SECTION 11. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member dissenting or abstaining from a decision shall state the reason for his dissent or abstention. The same requirement shall be observed by all lower collegiate courts.
SECTION 12. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.
An appeal by the State and/or the offended party from a judgment of acquittal may be allowed in 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.
SECTION 13. The salary of the Chief Justice and of the Associate Justices of the Supreme Court and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of ____________ and each Associate Justice ______________ pesos.
SECTION 14. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
(2) 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.
(3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties.
SECTION 15. An amount equivalent to not less than two percent of the national budget shall be automatically appropriated and regularly released for the judiciary.
SECTION 16. The Supreme Court shall, within thirty days from the opening of each regular session of the National Assembly, submit to the President and the National Assembly an annual report on the operations and activities of the judiciary. The Chief Justice shall address the National Assembly at the opening of each regular session.
MR. RAMA: May I ask that the sponsor of the Article on the Judiciary, Commissioner Concepcion, be recognized?
SUSPENSION OF SESSION
THE PRESIDING OFFICER (Mr. Azcuna): The session is suspended.
It was 4:09 p.m.
RESUMPTION OF SESSION
At 4:43 p.m., the session was resumed.
THE PRESIDING OFFICER (Mr. Azcuna): The session is resumed.
The honorable Commissioner Concepcion is now recognized to sponsor the proposed Article on the Judiciary.
SPONSORSHIP SPEECH OF COMMISSIONER CONCEPCION
MR. CONCEPCION: Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. But before I proceed, I would like to present my regrets for being out, not being in the session hall when the Committee was called to report. I thought we had a recess. And considering our experience last night, when most of us were unable to reach our homes until late in the evening, I thought it was an opportune moment to get some reinforcement, if I may use the expression. And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case.
Under the Constitution, the President may declare martial law in case of invasion, insurrection or rebellion or imminent danger thereof. If public safety or public interest requires it, he may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.
The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past.
I hope the Commissioners who are not lawyers will bear with me as I explain further because the matter is really a technical one. The Senate and the House had, under the 1935 Constitution, a House Electoral Tribunal and a Senate Electoral Tribunal. Our friend, Mr. Lorenzo Tañada, was the only member of the minority party in the Senate. The Constitution provided that electoral protests involving senators would be a nine-man Senate Electoral Tribunal. Of these nine, three were to be members of the majority party in the Senate and another three members for the minority party in the Senate; and lastly, three Justices of the Supreme Court. After the majority party had elected its three representatives to the Electoral Tribunal, and when it came to the nominations of the three senators for the opposition, Senator Tañada said that he could not nominate any senator except himself because there was no other senator belonging to the minority. The majority then nominated two senators belonging to the majority to form part of the group of three to represent the minority. As a consequence, the majority would actually have had five members: the Supreme Court, three and the minority, one. When the issue was brought to the Supreme Court, the defense put up by the government was that the matter involved a political question. But in that case of Tañada vs. Cuenco, the Court held that the Senate Electoral Tribunal was to consist of nine senators, because the possible partisanship of the three members for the majority would be offset by that of the three members of the minority. The group of three members of the Supreme Court constituting the third group would ensure the impartiality in the decision of the Electoral Tribunal. The defense of the political question was rejected because the issue was clearly justiciable.
We still had another important case. It was early after liberation. You probably remember that during World War II, President Roosevelt of the US announced over the television that the American government would compensate or indemnify all damages we may suffer during the war up to the last carabao. Liberation came and the American Congress appropriated $1 billion for war damages but with strings attached. We had to give them parity rights. The question was whether or not we should grant these rights because of the issue in the election held in 1946. The majority party was in favor and another political party opposed it, because there was $1 billion together with the parity rights.
In order to give parity rights to the Americans, it was necessary, however, to get a qualified majority in both Houses of Congress. But the number of votes available to the majority party was a few votes short of the required qualified majority. At that time there were half a dozen members elected in districts believed to be dominated by leftists. By the way, the members of the minority belonged to what was known as the Democratic Alliance. These members of the minority were suspended upon the ground that their election was tainted with fraud and terrorism.
Then the constitutional amendment granting parity rights was taken and got the qualified majority required by the Constitution. Assailed in the Supreme Court, the Supreme Court held that the question whether the suspended Members should be counted in the determination of the required qualified majority was a political question. It was obvious that the members of the Democratic Alliance were suspended to enable the ruling party to get the votes necessary for the approval of the bill calling a plebiscite on the parity rights. When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of X Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also, another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.
Section 2 of the draft prepared by the Committee is merely the second sentence of Section I of Article X of the 1973 Constitution which states, and I quote:
The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 7 hereof.
There is a second paragraph which reads:
No law shall be passed reorganizing the judiciary when it undermines security of tenure.
This provision reflects the apprehension in a number of resolutions referred to the Committee: the resort to judicial reorganization in order to circumvent the security of tenure.
Section 3 of the draft says:
The Supreme Court shall be composed of a Chief Justice and ten Associate Justices. It may sit en banc or in two divisions.
Under the 1973 Constitution, the Supreme Court shall be composed of a Chief Justice and 14 Associate Justices. It may sit en banc or in two divisions. The second, third and fourth subsections or paragraphs of this section state, and I quote:
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard and decided by the Supreme Court en banc, and no treaty, international or executive agreement, or law may be declared unconstitutional without the concurrence of a majority plus one of the members who actually participated when the case was submitted for decision. The same number of votes shall be required for the imposition of the death penalty.
The present Constitution requires 10 votes of the Supreme Court. Our draft requires only a majority plus one:
(3) All other cases including those involving the application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations which under the rules of court are required to be heard en banc shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision.
(4) Cases heard by a division shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision but if such required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
There are two important changes introduced by this section: the court may sit in two divisions or en banc. As usual, a majority is necessary to have a quorum. But to render a decision, only a majority plus one is necessary to declare a law unconstitutional. Whereas under the present Constitution the Supreme Court is composed of 15 members, the vote of 10 members is required to declare a law unconstitutional. Often, however, the actual membership of the court is limited to 12 or even 11. To require 10 votes for the declaration of unconstitutionality, the votes of three or four members would prevail over those of a clear majority of the Court members. This has happened several times in the past. The two-thirds requirement, therefore, strengthens the executive and weakens judicial power.
The first paragraph of Section 4 of the draft states:
(1) no person shall be appointed member of the Supreme Court unless he is a natural-born citizen of the Philippines, at least forty years of age, and has for fifteen years or more been a judge of a lower court or engaged in the practice of law in the Philippines.
Several important changes are thereby introduced. The present law requires 10 years as a judge of a court of record to be qualified for appointment to the Supreme Court. Our draft provision increases the requirement to 15 years.
Besides, we have eliminated the words "of record" in the phrase "court of record" because all lower courts are now courts of record.
Paragraph (2) of the draft Section 4 provides:
The National Assembly shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a natural-born citizen of the Philippines and a member of the Philippine Bar.
Section 5 reads:
The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by a Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
The choice of the President in filling vacancies in the judiciary is limited to a list of nominees prepared or submitted by a Judicial and Bar Council of which we will speak later more in detail.
Moreover, the "appointments by the President need no confirmation" by another body.
This is a provision suggested by practicing lawyers upon the ground that in the past judges had to kowtow to members of the legislative body to get an appointment or at least to see the Chairman of the Committee on the Judiciary in Congress and request his support to the confirmation of his appointment. The idea is to forestall as much as possible the influence of partisan politics.
Section 6 of the draft is to the effect that:
Paragraph 2 of the draft of Section 5 provides:
The regular members of the Council shall be appointed by the President for a term of four years.
The phrase "regular members" refers to all those who are not ex-officio members.
The paragraph continues:
(4) The regular members of the Council shall receive such emoluments, and the ex-officio members shall receive such allowances as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.
The reason for this should be obvious. The Council will actually have to work throughout the year, screening nominees for 2,200 positions in the bench.
The last paragraph of Section 6 is:
(5) The Council shall have the principal function of recommending appointees to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
Pursuant to Section 7 of the draft:
The Supreme Court shall have the following powers:
(e) All cases in which only an error or question of law is involved.
Justice Colayco is kind enough to suggest that the reading of the draft be assigned to our Secretary-General. By the way, before she does so, I wish to thank the Members of the Commission for their attention in adopting means for my comfort today.
Our Secretary-General will continue the reading of the draft without prejudice to the interpellations later. I will try to answer as best I can.
THE SECRETARY-GENERAL, reading:
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not last longer than six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall take effect upon approval by the Supreme Court.
(6) Appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
SECTION 8. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial and/or administrative functions.
SECTION 9. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
SECTION 10. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by the vote of a majority plus one of the Members who actually participated when the matter was submitted for resolution.
SECTION 11. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member dissenting or abstaining from a decision shall state the reason for his dissent or abstention. The same requirement shall be observed by all lower collegiate courts.
SECTION 12. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.
An appeal by the State and/or the offended party from a judgment of acquittal may be allowed in 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.
SECTION 13. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of _________ and each Associate Justice __________ pesos.
SECTION 14. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
(2) 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.
(3) Upon the expiration of the corresponding period, certification of this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties.
SECTION 15. An amount equivalent to not less than two percent of the national budget shall be automatically appropriated and regularly released for the judiciary.
SECTION 16. The Supreme Court, shall, within thirty days from the opening of each regular session of the National Assembly, submit to the President and the National Assembly an annual report on the operations and activities of the judiciary. The Chief Justice shall address the National Assembly at the opening of each regular session.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Nolledo be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Nolledo is recognized.
MR. NOLLEDO: Thank you, Mr. Presiding Officer.
Will Commissioner Concepcion please yield to interpellations?
MR. CONCEPCION: With pleasure.
MR. NOLLEDO: Thank you.
Before I ask my questions, I do not know if it is proper for me to state that the 1973 Constitution was ratified by barangay assemblies as the Gentleman stated. There were pictures produced by the previous administration showing people raising their hands and Marcos claimed that they were voting for the Constitution. But the questions asked, according to our information, were these: "Sino ang gustong kumain ng siopao at uminom ng Coca-Cola at Pepsi? " So the people raised their hands, a picture was taken of them and the President concluded that they ratified the 1973 Constitution which is one of our working drafts. I do not know also if it is inappropriate for me to state, in connection with the Chief Justice's narration of the Javellana case, that the Honorable Napoleon Rama and I were among those incarcerated. Napoleon Rama was incarcerated in Fort Bonifacio; I was incarcerated in Camp Crame.
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice to settle actual controversies . . ." The term "actual controversies" according to the Commissioner should refer to questions which are political in nature and, therefore, the courts should not refuse to decide those political questions. But do I understand it right that this is restrictive or only an example? I know there are cases which are not actual and yet the court can assume jurisdiction. An example is the petition for declaratory relief.
May I ask the Commissioner's opinion about that?
MR. CONCEPCION: The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO: The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION: Yes.
MR. NOLLEDO: And so, is this only an example?
MR. CONCEPCION: No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO: Because of the expression "judicial power"?
MR. CONCEPCION: No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide.
MR. NOLLEDO: I thank the Commissioner.
I would like to ask the second question with respect to the second paragraph of Section 2, which reads: "No law shall be passed reorganizing the judiciary when it undermines security of tenure."
The Supreme Court ruled in some cases that there is no vested right to public office and that if a public office is abolished, security of tenure is not adversely affected.
Would the Gentleman say then that that doctrine is changed by this proposed provision?
MR. CONCEPCION: Certainly. First, reorganization should not be resorted to for the purpose of dismissing any judge.
MR. NOLLEDO: Thank you.
The third question . . .
MR. CONCEPCION: I think Commissioner Davide has filed a resolution on that point and he can explain his thoughts on the matter.
MR. NOLLEDO: Thank you.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Davide is recognized.
MR. DAVIDE: Thank you, Mr. Presiding Officer.
This particular proposal was based on a resolution filed by this representation and amended basically by the amendment of Commissioner Padilla. We realize, of course, that in 1980 for instance, under the guise of a judicial reorganization, the so-called judicial reorganization was made. So, there was a general revamp of the judiciary. Supposedly, the intention of the revamp was to attain economy, but actually the main purpose of that general revamp was to eliminate from the judiciary people whom the leadership at the time believed to be not loyal to the administration and to replace them with people who were loyal to the administration. Necessarily, the result was massive expulsion or ouster of several people, especially of those who had no padrinos, as well as the entry into the judiciary of people who had the necessary connections with the politicians of the dispensation at the time.
I recall very well that despite the creation of the Integrity Council to effect the revamp, the recommendations of the Integrity Council were disregarded. I know personally of an assemblyman who recommended somebody whose name was in the final list, but eventually another list was submitted to Malacañang and what happened was that this gentleman, who was recommended and who already gave a treat to the assemblyman, found himself without any position. Unfortunately, he was holding at the time a position in the lower courts of the judiciary. And so, he lost both positions because somebody replaced him and he was not able to get the appointment that was supposedly intended for him on the basis of the first list that was submitted.
We cannot protect the independence of the judiciary nor can we enhance its independence if a revamp of the judiciary can be made at any time by the National Assembly for any reason whatsoever. So, this proposal seeks to enhance, preserve, promote and maintain a really authentic independence of the judiciary.
MR. NOLLEDO: The Gentleman must be referring to the case of de la Llana vs. Alba, where the Supreme Court speaking through former Chief Justice Enrique Fernando said that abolition of public office does not involve security of tenure. So, as I understand it from Commissioner Davide, this ruling is now obsolete if we adopt this provision.
MR. DAVIDE: That was a general doctrine and in this particular case, we limit ourselves to our position on the security of tenure in the judiciary.
MR. NOLLEDO: I do not know if any member of the Committee is willing to enlighten me on the meaning of international agreement because, as I understand it, when we talk of executive agreement, we talk of two chief executives entering into an agreement on tariff, customs, etc. But it seems to me this is my first time to hear the term "international agreement" because as I understand it, when we call it an international agreement, we must be referring necessarily to a treaty.
MR. CONCEPCION: Mr. Presiding Officer, there are conventions, for example, the Hague Convention, where the word "treaty" is not proper for the set of rules incorporated into these international agreements.
MR. NOLLEDO: If the Commissioner does not mind, I presented Resolution No. 188, which is not mentioned in the committee report, entitled:
This is similar to a provision in "Canons of Judicial Ethics," but history states that those provisions are more honored in breach than in observance.
MR. CONCEPCION: That is right.
MR. NOLLEDO: So, when we discipline a member of the judiciary, perhaps it will strengthen the intention if we can quote a constitutional mandate that he has not acted beyond reproach as enjoined by the Constitution.
MR. CONCEPCION: The Committee is well aware of the fact that our task is to make good laws. But it is also fully aware of the fact that no matter how good the laws are, if the persons chosen to enforce those laws are not the right persons, they may be doing a disservice to the country. In connection with the judges, that is the reason for the Judicial and Bar Council.
MR. NOLLEDO: When we set forth these moral qualifications, they may be considered guidelines by the Judicial and Bar Council when they determine the qualifications of prospective appointees.
MR. CONCEPCION: But that is understood: honesty, competence, etc. That is the only purpose of the Judicial and Bar Council.
MR. NOLLEDO: Just two more questions, if Commissioner Concepcion does not mind.
Section 7 (3) on page 4 says: "Assign temporarily judges of lower courts to other stations as public interest may require." I would like to know the meaning of "other stations" because as now constituted by law, we have regional trial courts within a particular region. So when a judge is assigned temporarily to another court within a region, is that an assignment to other stations or not?
MR. CONCEPCION: Yes, Commissioner.
MR. NOLLEDO: If my memory serves me right, there is an obiter dictum of the Supreme Court that it is not considered an assignment because it is within the region. A station is different from a region.
MR. CONCEPCION: The appointments are extended for a particular branch of a given region but one branch is different from the others. A judge may have a good assignment — in terms of housing facilities, etc. — and he may be threatened to be transferred to a place where those facilities are absent.
MR. NOLLEDO: Thank you.
My last question is about my Resolution No. 367, entitled: RESOLUTION TO PROVIDE IN THE NEW CONSTITUTION THAT THE DEATH PENALTY IMPOSED ON AN 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.
I am mentioning this in advance so that he may discuss with the members of the Committee, if it will be acceptable to them that the proposed resolution be included in Section 14 (4) on page 6.
MR. CONCEPCION: There really is a problem of coordination. The question refers to cases where the death penalty has been imposed, whereas our impression is that the majority of another committee has voted to abolish the death penalty. That is why I make reference to the fact that insofar as the jurisdiction of the Supreme Court is concerned, there is a paragraph there where the death penalty or capital punishment or life imprisonment is referred to. But whether or not the death penalty shall be imposed is subject to the decision of the Commission.
If the Commissioner has time to go over the draft proposal of the Committee, he will notice that the Committee has tried to be as polite as possible to judges so as not to impair their image. We should be the first to protect the image of the judges. It will also be noted that there are other provisions in our draft which try to ensure better compliance with the present rules. For instance, the date of submission of the case must be certified in its record. The date of expiration of the period prescribed by law must similarly be certified in the record. We do not say, "Do this or else," because that would be treating judges like kids. But this is the full implication of the provisions referred to.
MR. NOLLEDO: This is definitely the last question, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Gentleman has one minute more.
MR. NOLLEDO: Commissioner Concepcion, this is in connection with Section 14. It was the sense of the 1971 Constitutional Convention to consider the time limit for decision of cases as mandatory, but the Supreme Court, in many cases, ruled that this should only be directory.
What is now the sense of the Committee with respect to Section 14 (1) which reads:
(1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
MR. CONCEPCION: It is mandatory, but we do not use the word "mandatory"; instead we say "must."
MR. NOLLEDO: How would the Commissioner interpret that? Is that directory or mandatory?
MR. CONCEPCION: It is not directory; it is an order that is why we say "must."
MR. NOLLEDO: The Supreme Court ruling says "must" or "shall" in view of the clogging of cases which made it impossible for the Supreme Court to decide the cases within the stated period.
MR. CONCEPCION: We have not only said "it must do this" but we also say that the Supreme Court shall devise a plan to unclog the dockets of the courts. Furthermore, the Gentleman will notice that there is an addition in the draft which says: "The Chief Justice shall appear before or address the National Assembly at the opening of its regular session." The idea is to en- courage him by giving him a better image, and at the same time allow him to confront the representatives of the judiciary and convey their criticisms on the operation of courts.
We did not want to put it in such a language as would debase the dignity of the bench, but expressed our idea in a polite language.
THE PRESIDING OFFICER (Mr. Azcuna): The time of the Commissioner has expired.
MR. NOLLEDO: Thank you very much.
THE PRESIDING OFFICER (Mr. Azcuna) The Floor Leader is recognized.
MR. RAMA: Mr. Presiding Officer, I ask that Commissioner Padilla be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Padilla is recognized and is given 15 minutes.
MR. PADILLA: Mr. Presiding Officer and Commissioner Davide, in response to a question propounded by Commissioner Nolledo on the proposed provision that reads: "No law shall be passed reorganizing the judiciary when it undermines security of tenure," may I be permitted to say that the Batasang Pambansa enacted a Judiciary Reorganization Act which was assailed as illegal and unconstitutional. However, the Act was upheld as valid, and the result was the reorganization of the courts, including the Court of Appeals which was renamed the Intermediate Appellate Court; the Courts of First Instance, renamed Regional Trial Courts; and the Municipal Courts renamed Municipal Trial Courts. This resulted in legislating out of their judicial offices some members of the courts lower than the Supreme Court. That said Reorganization Act not only undermined the independence of the judiciary, but, likewise, was a direct assault against the principle of the security of tenure of judicial officers.
I recall, Mr. Presiding Officer, that one of my first cases before the Supreme Court when I was appointed Solicitor General in 1954 was the case of Ocampo vs. Secretary of Justice. At that time, Congress then approved a law abolishing the positions of judges-at-large and cadastral judges. The 1935 Constitution, as well as the subsequent Constitution, recognized district judges. And the anomalous practice was that sometimes a judge-at-large or a cadastral judge who did not have a judicial district of his own was assigned to a particular trial court to hear a particular case. That was bad, because the designation would be made by the Secretary of Justice and presumably upon the suggestion or direction of the President.
In that case, while I subscribe to the principle of an independent judiciary, I invoked the defense that the law abolishing judges-at-large, or cadastral judges which are not recognized in the 1935 Constitution for it only recognizes district judges, is not a violation of the Constitution but is an implementation thereof. That defense was sustained by three or four of the justices, although the majority still were of the opinion and held that insofar as it could legislate judges out of their judicial position, even if their appointments were judges-at-large or cadastral judges, it was unconstitutional because it violated the tenure of office of those judges-at-large and cadastral judges. That law did not receive the sufficient number of votes, two-thirds of the members of the Supreme Court, to declare it unconstitutional. But even though it was not declared unconstitutional, the fact remains that the majority of the court reiterated the sacred rule, the judicial sanction, I might say, to the fundamental principle of security of tenure to assure the independence of the judiciary.
Mr. Presiding Officer, this sentence, "No law shall be passed reorganizing the judiciary when it undermines security of tenure" was based on a resolution proposed by Commissioner Davide and was restated in this report of the Committee. What is important is the word "re- organizing," as well as the more important phrase "security of tenure," so that the legislature should not be allowed to pass a bill to revamp or reorganize, or use any other term, when its purpose and its effect would be to undermine the security of tenure of judicial officers.
Thank you, Mr. Presiding Officer.
MR. CONCEPCION: Mr. Presiding Officer may I add a few words.
It is not so important whether the President will or will not use the power to reorganize the judiciary. But so long as the power is vested in him, that serves as a sword that will always exist over the heads of all judges. So at all times, judges may have insecurity of tenure.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Bernas be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bernas is recognized.
FR. BERNAS: Mr. Presiding Officer, may I just be allowed to ask some clarificatory questions on the same provision that was being discussed just a while ago.
Do I understand the sponsor correctly that this is not a prohibition of reorganization?
MR. CONCEPCION: That is right.
FR. BERNAS: It is not a prohibition of reorganization. In case there is an attempt to reorganize, it must be done in such a way that it does not undermine the security of tenure of judges.
MR. CONCEPCION: That is correct.
FR. BERNAS: And whether or not their attempted organization undermines security of tenure, that is something which is to be decided upon by the Supreme Court.
MR. CONCEPCION: That is right.
FR. BERNAS: In the same way that it was done in the past.
MR. CONCEPCION: Not in the same way, because in the past the number of votes necessary for constituting a majority was offset by the minority, but under our Constitution, we need 10 votes or at least two-thirds of all the Members.
FR. BERNAS: Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question doctrine?
MR. CONCEPCION: No.
FR. BERNAS: It is not.
MR. CONCEPCION: No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS: So, I am satisfied with the answer that it is not intended to do away with the political question doctrine.
MR. CONCEPCION: No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas.
FR. BERNAS: So, this is not an attempt to solve the problems arising from the political question doctrine.
MR. CONCEPCION: It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.
FR. BERNAS: Another question, Commissioner Concepcion.
Line 27 reads: "All other cases including those involving the application or operation of presidential decrees . . ." I understand this to have reference to the application or operation of the presidential decrees, but not to the presidential decree itself.
MR. CONCEPCION: That is right.
FR. BERNAS: So, for purposes of invalidating the application or operation, he needs this type of vote.
MR. CONCEPCION: Yes.
FR. BERNAS: For purposes of invalidating the decree itself, what kind of vote is needed?
MR. CONCEPCION: We will require a majority plus one, of those Members who actually participated in the deliberation.
FR. BERNAS: So it is the same as in the preceding paragraph.
MR. CONCEPCION: That is right.
FR. BERNAS: Thank you.
On page 5, line 5 says: "when they reach the age of seventy years or become incapacitated . . ." Who will decide whether they have become incapacitated?
MR. CONCEPCION: The Committee has not decided on that. But, presumably, the Judicial and Bar Council would be consulted about it and, of course, the Supreme Court.
FR. BERNAS: But if an actual case arises, and we notice that a particular Justice of the Supreme Court seems to be incapacitated and his capacity is challenged, who would decide on that?
MR. CONCEPCION: No. That is not settled by the draft proposal.
FR. BERNAS: Could that matter be settled by ordinary legislation?
MR. CONCEPCION: As to the procedure, I suppose so.
FR. BERNAS: It could be.
MR. CONCEPCION: Yes.
FR. BERNAS: May I go back to page 4, Section 8 which says:
The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial and/or administrative functions.
Is this also a prohibition against justices giving advisory opinions to the President?
MR. CONCEPCION: No, not that.
FR. BERNAS: Thank you, Commissioner.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Rodrigo be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Rodrigo is recognized.
MR. RODRIGO: Will the sponsor yield to a few questions for clarification?
MR. CONCEPCION: With pleasure.
MR. RODRIGO: Mr. Presiding Officer, I want to ask questions on some novel provisions in this proposal. At present, the Constitution provides for a definite number of the votes of justices in order to decide certain matters, for example, at least 10. But here the basis is a majority plus one, of the Members who actually participated. In case of an en banc court, there are, at most, 11 justices.
MR. CONCEPCION: That is right.
MR. RODRIGO. How many of them have to participate?
MR. CONCEPCION: Six of them have to participate.
MR. RODRIGO: So, if only six participated, then the vote of four . . .
MR. CONCEPCION: Four plus one, because three is not a majority — out of six, it is only one-half. So, four plus one, five.
MR. RODRIGO. So, in an en banc decision, even if there are 11 justices actually in the Supreme Court, a vote of only four can already . . .
MR. CONCEPCION: No, a vote of five.
MR. RODRIGO: A vote of four.
MR. CONCEPCION: No; a majority plus one.
MR. RODRIGO: Majority plus one.
MR. CONCEPCION: That is right.
MR. RODRIGO: What is the minimum number of those who should participate?
MR. CONCEPCION: There must always be a quorum.
MR. RODRIGO: Six?
MR. CONCEPCION: Yes, at least, for an en banc decision.
MR. RODRIGO: Let us say that only six participated. Then, mitad mas uno will be . . .
MR. CONCEPCION: That is right, because mitad is not majority.
MR. RODRIGO: Mitad mas uno.
MR. CONCEPCION: No, majority plus one.
MR. RODRIGO: Concurrence of a majority plus one. That is why I wanted that clarified. So, a vote of five is enough to render a decision of the Supreme Court en banc, even if there are 11 justices, although five is not a majority of all the members of the court. In very important matters, is it not better to provide for a vote of a majority of all the justices?
MR. CONCEPCION: It will be better in the court where it is always full. But our experience has shown that during martial law, the majority seldom, if ever, had been fully composed of the number prescribed in the Constitution.
MR. RODRIGO: I mean a majority of all the actual members of the Supreme Court.
MR. CONCEPCION: Yes, but if there are vacancies . . .
MR. RODRIGO: Then, of all the actual members of the Supreme Court.
MR. CONCEPCION: The problem is this: Former Solicitor General Padilla mentioned the case of Ocampo vs. Secretary of Justice. The votes there were seven to four. The four won the case because the law then required eight votes, and we do not want that to be maintained. Secondly, we want the court to act expeditiously in the disposal of cases. And, thirdly, one judge of a lower court can declare a law unconstitutional. Why not five from the Supreme Court?
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about appointments of members of the Supreme Court and of judges of lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointments. In this proposal, we would like to establish a new office, a sort of a board composed of seven members, called the Judicial and Bar Council. And while the President will still appoint the members of the judiciary, he will be limited to the recommendees of this Council.
MR. CONCEPCION: That is correct.
MR. RODRIGO: And the Council will, whenever there is a vacancy, recommend three.
MR. CONCEPCION: At least three for every vacancy.
MR. RODRIGO: And the President cannot appoint anybody outside of the three recommendees.
MR. CONCEPCION: Nomination by the Council would be one of the qualifications for appointment.
MR. RODRIGO: Suppose the President does not want to appoint any of the three, will the Council be asked to submit another list?
MR. CONCEPCION: In other words, it is just the same as saying the President is not willing to comply with the Constitution
MR. RODRIGO: No, he is willing to comply, but he does not want to appoint any of the three.
MR. CONCEPCION: That is it. The Constitution requires that the nominee be included in the list of the Council.
MR. RODRIGO: No. That is what I want to know. The Council submits three nominees, but the President does not want to appoint any of them. Can he ask the Council to submit another list of three nominees?
MR. CONCEPCION: Yes, definitely.
MR. RODRIGO: And if he does not want these three new nominees, the Council could still submit another three?
MR. CONCEPCION: Yes. I understand that there is also a proposal requiring the filling of vacancies within a specified period.
MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four of them who are the regular members.
MR. CONCEPCION: Yes, that is right.
MR. RODRIGO: So, majority of the members of the Council are appointees of the President.
MR. CONCEPCION: That is right.
MR. RODRIGO: Can the members of the Council be reappointed?
MR. CONCEPCION: They can be reappointed.
MR. RODRIGO: Yes, they can be reappointed, because the tenure of office is staggered — one is appointed for four years, the others are for three years, two and one.
MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.
MR. RODRIGO: So, the member who is appointed for a one-year term can be reappointed for a three- or four-year term. There is no limitation on reappointment?
MR. CONCEPCION: That is right.
MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary provides:
The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court.
MR. CONCEPCION: Yes.
MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or supplement the rules concerning the protection and enforcement of constitutional rights, pleading, etc. — it must have the advice and concurrence of the Supreme Court.
MR. CONCEPCION: That is correct.
MR. RODRIGO: This renders the job of the Assembly inutile because it is absolutely dependent on the Supreme Court. It cannot initiate anything; it has to solicit first the advice and concurrence of the Supreme Court.
MR. CONCEPCION: The President is not the Almighty God. He cannot know better than the courts. The courts control internal operation. That is the purpose.
MR. RODRIGO: Why not just remove this power, which is inutile, from the National Assembly?
MR. CONCEPCION: That is the Commission's concern. If it wants to eliminate it, we will not object to it.
MR. RODRIGO: Instead of giving it a power, which is no power at all, we might as well eliminate this.
MR. CONCEPCION: The point is this. We feel that no President can know better than the court what the demands of its internal operations are.
MR. RODRIGO: Yes. I think I made myself clear on that point.
Another point, Mr. Presiding Officer, which we took up in the Committee on the Legislative is that of giving the State or the offended party the power to appeal from a judgment of acquittal in a criminal case. For the benefit of those who are not lawyers in this body, there is the rule at present against double jeopardy, which provides that if an accused is acquitted at any stage of the judicial proceeding, he can no longer be tried. So, if an accused is acquitted in the municipal court, the judgment of acquittal cannot be appealed to the regional court or to the court of appeals.
Section 12, on page 5, states:
An appeal by the State and/or the offended party from a judgment of acquittal may be allowed in 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.
MR. CONCEPCION: That is correct.
MR. RODRIGO: Even if it is not a mere question of law but of appreciation of facts or evidence?
MR. CONCEPCION: If there has been an abuse of discretion, the court has no jurisdiction and, of course, if the court has no jurisdiction, there could be no valid decision. That is it.
MR. RODRIGO: But lack of jurisdiction can be based on a mistake of the appreciation of facts because it says: "review on certiorari on the ground that it is manifestly against the evidence."
MR. CONCEPCION: Yes, it is manifestly against the evidence on record.
MR. RODRIGO: But it says here: "in the discretion of the Supreme Court." I would like to clarify this. Is it only the Supreme Court to which a judgment of acquittal can be appealed? Can a judgment of acquittal of a municipal court be appealed to a regional trial court?
MR. CONCEPCION: When it affects jurisdiction, it goes to the Supreme Court. The power to review cases involving jurisdiction is stated in the Constitution. That is simple — if there is no jurisdiction, there is no authority, and if there is no authority, the decision rendered is null and void.
MR. RODRIGO: So, the offended party may appeal to the Supreme Court. Suppose somebody is acquitted in the municipal court, can the offended party appeal to the regional trial court?
MR. CONCEPCION: I suppose he could not but if he wants to question the jurisdiction, that is another thing. It is not an appeal. I think Commissioner Rodrigo is not speaking of appeal in general.
MR. RODRIGO: By a petition for review on certiorari.
MR. CONCEPCION: It is an appeal based on the allegation that there has been such abuse of discretion that the court which rendered the judgment acted without jurisdiction.
MR. RODRIGO: I go back to my question. Suppose the accused is acquitted in the municipal court and the offended party wants a petition for review on certiorari, can he petition the regional trial court for it or does he have to go to the Supreme Court?
MR. CONCEPCION: I ask Commissioner Padilla, the author of the provision, to answer the Commissioner's question because I do not want to preempt him.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Padilla is recognized.
MR. PADILLA: Mr. Presiding Officer, the provision, as it appears in the committee report, is limited to a petition for review on certiorari to the Supreme Court, subject to the discretion of the Supreme Court. My original proposal referred to the discretion of the appellate court, but the Committee felt that, when the question involves lack or excess of jurisdiction, the petition should be directed or confined to the Supreme Court. I would like to add that the ground is specific and restricted. Besides being discretionary on the part of the Supreme Court, it may dismiss a petition for review on certiorari outright if it has no merits.
In addition, the ground for a petition for review on certiorari is not only if the judgment is manifestly against the evidence but also if it is rendered with grave abuse of discretion. In my original proposal, it was either of these, but the Committee felt that in addition to the judgment of acquittal being manifestly against the evidence, it must also have been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction.
MR. RODRIGO: Let me repeat my question. Suppose an accused is acquitted by the municipal court under this provision by the Committee, can the offended party petition for review on certiorari to the next higher court which is the regional trial court?
MR. PADILLA: No, the provision, as redrafted by the Committee, is clear that this petition for review on certiorari may only be filed with the Supreme Court, which has the discretion to dismiss or to give it due course.
MR. RODRIGO: But in the Vice-President's original proposal, this petition for review on certiorari can be filed in the regional trial court.
MR. PADILLA: To an appellate court.
MR. RODRIGO: Which is better, Mr. Presiding Officer? I am sure the Vice-President's own "baby" is better.
MR. PADILLA: Our own proposals, which we sometimes feel are the best, must yield to the better judgment of the members of the Committee, and I did agree, otherwise, I would have insisted on my original proposal.
MR. RODRIGO: I will propound the question to the sponsor now.
There are thousands of criminal cases all over the Philippines, in the municipal, city, and regional trial courts. If all the appeals from judgment of acquittals by the offended party or the State be in the discretion of the Supreme Court, does not the sponsor believe the Supreme Court will be swamped by an avalanche of petitions for review on certiorari?
MR. CONCEPCION: Only God can tell and answer the Commissioner's question whether it will be swamped by petitions for review on certiorari or not.
MR. RODRIGO: Yes.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Rodrigo's 15-minute period is over.
MR. RODRIGO: Thank you, Mr. Presiding Officer.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Bengzon be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bengzon is recognized.
MR. BENGZON: May I invite the sponsor's attention to page 5 of the committee report, Mr. Presiding Officer, but not of the draft Article, wherein it is stated that two sections are recommended to be included in the Transitory Provisions.
My question is: Is it not that the function of the Supreme Court in providing for a systematic plan to expedite the decision or resolution of cases or matters filed with the courts or the lower courts is something continuing?
MR. CONCEPCION: Yes, that is correct.
MR. BENGZON: So, why do we not include this section in the Article on the Judiciary?
MR. CONCEPCION: Again, the answer is simple. Not all courts have the same problems, and one court may find a method more suitable than that which would be suitable in other regions. There are regions in the Philippines, for instance, where most of the municipalities are situated in the seacoasts and transportation is rather difficult. In highly urbanized areas, it would not be so difficult because the executive judge and, perhaps, even the judges themselves can get together with the justice/s of the Supreme Court and discuss the problem.
My original thought was this, if the Commissioner may allow me to explain.. There are at present 1,700 judges out of 2,200 positions for judges. If each judge were required to decide one case in addition to his normal number of decisions, we would have 1,700 additional cases disposed of apart from those filed after the adoption of this Constitution. If we multiply 1,700 by 12 months, that would be quite a big number. That is how I see it in Manila. I do not know how it will work in the provinces, especially in Palawan. I was assigned there as a judge, but I have not been to that place since 1940. It was difficult to go from one place to another, for instance, from Puerto Princesa to Brooke's Point which is closest to Java or perhaps Sabah. There are problems of communications, court facilities, and libraries. So, I would prefer that the Supreme Court devise ways and means by consulting local judges with the assistance of the Judicial Administrator to unclog the dockets.
MR. BENGZON: Mr. Presiding Officer, what I am referring to is that since this is a continuing work, the Supreme Court will always have to find ways and means to expedite decisions because of varied reasons. My question is: Should we not make this section a part of the regular Article on the Judiciary instead of putting it in the Transitory Provisions?
MR. CONCEPCION: I do not think the members of the Committee would object to that.
MR. BENGZON: My next question is on the cases heard by a division. On page 2, lines 1 to 3 of the proposed Article on the Judiciary say:
Cases heard by a division shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision.
MR. CONCEPCION: That is right.
MR. BENGZON: Suppose there are five members in a division, if three of them, which constitute a quorum, actually participated in the deliberation of the case, a concurrence of the majority of the three, which is two members, would decide the case for the entire court?
MR. CONCEPCION: That is right. That is also part of the attempt to have the Supreme Court clear the docket. If one judge of a municipal court or one regional judge can declare a law unconstitutional, why can two justices of the Supreme Court not? That is the philosophy, Mr. Presiding Officer.
MR. BENGZON: I am still on page 2, line 30. What was the basic reason of the Committee for its decision on a term of four years for the regular members of the Judicial and Bar Council?
MR. CONCEPCION: One might say it was done at random or because there would be four members to be appointed by the President. Actually, the Committee felt there should be a renewal or change of membership from time to time. That is why their terms are staggered — to assure certain continuity in the policies, so that at no time would the Council have members who are not posted on the policies of the officers who preceded them.
MR. BENGZON: I am going back to Section 6, lines 22 to 25, page 2. One of the problems the Judicial Administrators or Judicial Superintendents had was every justice of the Supreme Court wanted to put in his two cents' worth with respect to recommendations they would make, so there was a great delay in the supervision of the lower courts.
The question is: When we create this Judicial and Bar Council, which is under the supervision of the Supreme Court, how would we obviate such a happening from being repeated?
MR. CONCEPCION: I will start by saying that the Commissioner's major premise is not exactly correct because it is a generalization of some incidental situations during the Marcos regime.
By the way, our committee report mentions the personalities who appeared before the Committee. They were, among others, the solicitor general who represents the government, Chief Justice Teehankee, former Chief Justice Makasiar and Atty. Belo, a prominent member of the Integrated Bar of the Philippines. The general consensus is that the major problem of the judiciary is political interference, particularly the power of reorganization which is dangerous, unless subject to some limitations.
MR. BENGZON: My last question, Mr. Presiding Officer, is — and this is for the record so that it will be properly entered in our Journal — on page 4, Section 7(6) states: "appoint all officials and employees of the judiciary." The Committee is referring to appointments of sheriffs, clerks of court, bailiffs and all the employees in the judiciary.
MR. CONCEPCION: Yes, that is right.
MR. BENGZON: All these appointments are made by the Supreme Court.
MR. CONCEPCION: By the Supreme Court, yes.
MR. BENGZON: Thank you.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: Before we adjourn, I would like to accommodate the request of Commissioner Gascon to file a motion for reconsideration, which has to be filed now otherwise it will be lost according to our Rules.
So, I ask that Commissioner Gascon be recognized, and that the consideration of that motion for reconsideration be deferred for tomorrow or some other day.
THE PRESIDING OFFICER (Mr. Azcuna): The Chair recognizes Commissioner Gascon.
MR. GASCON: Thank you, Mr. Presiding Officer.
Yesterday, we approved on Second Reading Committee Report No. 7, the Article on Amendment or Revision. After seriously considering the statements therein, I would like to file a motion for reconsideration so that I may introduce amendments on Section 2 on initiative which are: to put a period (.) after the word "Constitution" and to delete "nor oftener than once every five years thereafter."
I feel it is awkward to give freedom to the National Assembly as far as proposing amendments to the Constitution is concerned since we do not give the same freedom to the people. So, I would like to file this motion for reconsideration.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Floor Leader is recognized.
MR. RAMA: I move that we defer consideration of the motion for reconsideration for tomorrow.
THE PRESIDING OFFICER (Mr. Azcuna): Is there any objection? (Silence) The Chair hears none; the motion is approved.
ADJOURNMENT OF SESSION
MR. RAMA: Mr. Presiding Officer, I move that we adjourn until tomorrow at nine o'clock in the morning.
THE PRESIDING OFFICER (Mr. Azcuna): Is there any objection? (Silence) The Chair hears none; the session is adjourned until tomorrow at nine o'clock in the morning.
It was 6:48 p.m.
* Appeared after the roll call.
* See Appendix.
** See Appendix.
THE PRESIDENT: The session is called to order.
THE PRESIDENT: Everybody will please rise to sing the National Anthem.
Everybody rose to sing the National Anthem.
THE PRESIDENT: Everybody will please remain standing for the Prayer to be led by the Honorable Christine A. Tan.
Everybody remained standing for the Prayer.
SR. TAN: Good Father, we are pressured and sometimes tense. Show us how to keep the space in our heart where You will be able to show Yourself, and when You do, show Yourself beyond reason and law. Give us the simplicity to recognize You and to act accordingly. Amen.
THE PRESIDENT: The Secretary-General will please call the roll.
THE SECRETARY-GENERAL, reading:
| Abubakar | Present | Davide | Present |
| Alonto | Present | Foz | Present |
| Aquino | Present | Garcia | Present |
| Azcuna | Present | Gascon | Present |
| Bacani | Present | Guingona | Present |
| Bengzon | Present | Jamir | Present |
| Bennagen | Present* | Laurel | Present |
| Bernas | Present | Lerum | Present |
| Rosario Braid | Present | Maambong | Present |
| Brocka | Absent | Monsod | Present |
| Calderon | Absent | Natividad | Present |
| Castro de | Present | Nieva | Present |
| Colayco | Present | Nolledo | Present |
| Concepcion | Present | Ople | Present* |
| Padilla | Present | Suarez | Present |
| Quesada | Present | Sumulong | Present |
| Rama | Present | Tadeo | Present |
| Regalado | Present | Tan | Present |
| Reyes de los | Present | Tingson | Absent |
| Rigos | Present | Treñas | Present |
| Rodrigo | Present | Uka | Present |
| Romulo | Present | Villacorta | Present |
| Rosales | Absent | Villegas | Present |
| Sarmiento | Present |
The President is present.
The roll call shows 42 Members responded to the call.
THE PRESIDENT: The Chair declares the presence of a quorum.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: I move that we dispense with the reading of the Journal of yesterday's session.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
MR. RAMA: Madam President, I move that we approve the Journal of yesterday's session.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none: the motion is approved.
MR. RAMA: Madam President, I move that we proceed to the Reference of Business.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none the motion is approved.
The Secretary-General will read the Reference of Business.
The Secretary-General read the following Proposed Resolutions on First Reading, Communications and Committee Reports the President making the corresponding references:
Proposed Resolution No. 458, entitled:
RESOLUTION FIXING THE TERM OF THE INCUMBENT PRESIDENT AND VICE-PRESIDENT.Introduced by Hon. Ople, Maambong and Natividad.
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 459, entitled:
RESOLUTION STRENGTHENING THE SEPARATION BETWEEN CHURCH AND STATE.Introduced by Hon. Ople, Natividad, de los Reyes, Jr. and Maambong.
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 460, entitled:
RESOLUTION PROVIDING FOR REPRESENTATION OF THE OPPOSITION IN THE CONSTITUTIONAL COMMISSIONS.Introduced by Hon. Maambong.
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 461, entitled:
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.Introduced by Hon. Davide, Jr.
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 462, entitled:
RESOLUTION TO INCORPORATE IN THE ARTICLE ON THE TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A PROVISION MANDATING THE OBJECTIVES AND PARAMETERS OF GOVERNMENT REORGANIZATION.Introduced by Hon. Davide, Jr.
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 463, entitled:
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 PRIORITY.Introduced by Hon. Davide, Jr.
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 464, entitled:
RESOLUTION TO INCORPORATE IN THE ARTICLE ON THE TRANSITORY PROVISIONS OF THE NEW CONSTITUTION A 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 EMPLOYEES.Introduced by Hon. Davide, Jr.
To the Committee on Amendments and Transitory Provisions.
Proposed Resolution No. 465, entitled:
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 ANCESTRAL LANDS.Introduced by Hon. Bennagen.
To the Committee on Human Resources.
Proposed Resolution No. 466, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION FOR THE ADOPTION OF A MULTIPARTY SYSTEM.Introduced by Hon. Garcia.
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 467, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION PROHIBITING RELATIVES OF INCUMBENT LOCAL OFFICIALS WITHIN THE THIRD DEGREE OF CONSANGUINITY OR AFFINITY FROM RUNNING FOR THE POSITION TO BE VACATED BY THE INCUMBENT LOCAL OFFICIAL.Introduced by Hon. Garcia.
To the Committee on Constitutional Commissions and Agencies.
Proposed Resolution No. 471, entitled:
RESOLUTION PROPOSING TO ADOPT IN THE CONSTITUTION THE RECOGNITION OF THE STATE OF THE RIGHT OF THE CITIZENRY TO SPORTS AND PHYSICAL EDUCATION.Introduced by Hon. Quesada, Sarmiento, Garcia, Suarez, Nolledo and Brocka.
To the Committee on Human Resources.
Proposed Resolution No. 472, entitled:
RESOLUTION TO BROADEN THE SCOPE OF THE ARTICLE ON THE BILL OF RIGHTS TO INCORPORATE ECONOMIC, SOCIAL AND CULTURAL RIGHTS.Introduced by Hon. Quesada, Sarmiento, Villacorta, Garcia, Maambong, Foz, Nieva, Bennagen, Aquino, Gascon, Tan, Brocka, Davide, Jr., Rosario Braid, Uka, Tadeo, Nolledo and Suarez.
To the Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights.
Letter from Bulacan Social Action Movement signed by Mr. Tirso G. Robles, Jr., proposing a provision mandating the Legislature to enact laws on socialized medicine.
(Communication No. 161 — 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 the 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 rights.
(Communication No. 162 — 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 poor.
(Communication No. 163 — 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 justice.
(Communication No. 164 — 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 Fund.
(Communication No. 165 — 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 32 others, requesting the inclusion of provisions on environmental protection from pollution, deforestation and unscrupulous gathering of corals.
(Communication No. 166 — Constitutional Commission of 1986)
To the Committee on the 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 1,181 others, proposing a separate article on education, labor and employment, housing and agrarian and urban land reform.
(Communication No. 167 — 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."
(Communication No. 168 — Constitutional Commission of 1986)
To the Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights.
Committee Report No. 18, prepared by the Committee on the Judiciary, entitled:
ARTICLE ON THE JUDICIARY,
recommending its approval.
Sponsored by 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 Resolution Nos. 51, 54, 108, 117, 135, 139, 238, 240, 281, 356 and 357.
Sponsored by Hon. Foz, Rigos and Regalado.
To 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 Resolution Nos. 21 and 282.
Sponsored by Hon. Foz, Jamir and Monsod.
To 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 Resolution Nos. 182, 329 and 361.
Sponsored by Hon. Nolledo, Calderon, Tingson, Rosales, Alonto, de Castro, Bennagen, Rigos, Regalado, Jamir and Ople.
To the Steering Committee.
Committee Report No. 22, prepared by the Committee on the Legislative, entitled:
ARTICLE ON THE NATIONAL ASSEMBLY,
recommending its approval.
Sponsored by Hon. Davide, Jr., Azcuna, Abubakar, Alonto, Aquino, Calderon, Concepcion, de los Reyes, Jr., Garcia, Guingona, Jamir, Lerum, Rodrigo, Sumulong and Treñas.
Cosponsored by Hon. Villacorta, Romulo, Regalado Foz, Gascon, Tingson, Monsod, Rigos and Sarmiento.
To the Steering Committee.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: I move that we consider the proposal on the Article on National Territory, and I ask that Commissioner Bengzon be recognized.
THE PRESIDENT: Commissioner Bengzon is recognized.
(Article on National Territory)
MR. BENGZON: Madam President, I move for a reconsideration of the vote on Third Reading that took place last night on the Article on National Territory.
THE PRESIDENT: Is there any objection to the motion of Commissioner Bengzon that the voting on Third Reading which was held last night be reconsidered? (Silence) The Chair hears none; the motion is approved.
MR. BENGZON: Madam President, I also move for the suspension of the Rules in order to bring back the status of the Article on National Territory to Second Reading for the sole purpose of accommodating one amendment to change a phrase which presently reads: "all the other territories over which the government exercises sovereign jurisdiction" into the phrase "all other territories over which the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction."
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
MR. RAMA: Madam President, I ask that Commissioner Bernas be recognized.
THE PRESIDENT: Commissioner Bernas is recognized.
FR. BERNAS: Madam President, pursuant to the motion for the suspension of the Rules for the very exclusive purpose of inserting a change in the controversial phrase, I would like to propose that present amendment. We have in the text which was voted on yesterday the phrase starting on the third line which reads "and all the other territories over which the government exercises sovereignty or jurisdiction." The changes proposed would be: in place of the word "government," we put PHILIPPINES; in place of the word "exercises," we put HAS; in place of the word "sovereign," we put SOVEREIGNTY, and then we add OR. Thus, the amended phrase would read: "and all the other territories over which the PHILIPPINES has SOVEREIGNTY OR jurisdiction." And the explanation, if I may be allowed, is; on the change from "government" to PHILIPPINES, this is a recognition of the recommendation made by Commissioner Padilla that instead of "government" we use PHILIPPINES; on the change from "exercises" to HAS, this is in recognition of the sole objection of Commissioner Concepcion to this Article. The word HAS is of a broader application than "exercises." As explained by Commissioner Concepcion yesterday, one can continue to have jurisdiction over a territory even if it is physically wrested from him, whereas, in order to acquire a territory, one must exercise jurisdiction over it. But one does not lose a territory simply because he has lost the physical exercise of jurisdiction. One still continues to have jurisdiction even if he has lost effective exercise. The example given yesterday was that the jurisdiction over the Philippines when Japan was exercising control over the Philippines was not lost.
So, with these, may I repeat, the phrase will now be: "and all the other territories over which the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction."
THE PRESIDENT: So, the parliamentary situation right now is, first of all, the suspension of the Rules in order to allow this proposed amendment.
MR. NOLLEDO: Madam President.
THE PRESIDENT: Yes.
Is there any objection? May I please proceed first?
MR. NOLLEDO: Yes.
THE PRESIDENT: Is there any objection for the suspension of the Rules for the sole purpose stated by Commissioner Bernas? (Silence) The Rules then are suspended for this particular purpose and the remarks of Commissioner Bernas are taken into account.
MR. NOLLEDO: Madam President.
THE PRESIDENT: Commissioner Nolledo is recognized.
MR. NOLLEDO: Thank you.
On behalf of the Committee on Preamble, National Territory, and Declaration of Principles, I would like to manifest that the members of the Committee gladly accept the amendments of Commissioner Bernas and we commend his high sense of statesmanship.
THE PRESIDENT: Thank you.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
MR. DAVIDE: Will the distinguished sponsor of the amendment yield to some clarificatory questions?
THE PRESIDENT: What does Commissioner Bernas say?
FR. BERNAS: Very willingly.
MR. DAVIDE: Madam President, under the new proposed amendment, would "SOVEREIGNTY" mean past and present sovereignty?
THE PRESIDENT: The question is addressed to Commissioner Bernas.
MR. DAVIDE: Yes. Would the word "SOVEREIGNTY" in the new proposed amendment mean either past sovereignty or present sovereignty?
FR. BERNAS: It certainly would mean present sovereignty.
MR. DAVIDE: As well as past sovereignty?
FR. BERNAS: It would not refer to past sovereignty because if sovereignty is past that means it has been lost.
MR. DAVIDE: In other words, the import is just the same as the original proposal?
FR. BERNAS: No, the change in import is in the change of the word "exercises" to HAS.
MR. DAVIDE: So, "HAS SOVEREIGNTY OR jurisdiction"?
FR. BERNAS: Yes.
MR. DAVIDE: Nevertheless, the meaning again of "HAS SOVEREIGNTY" would only be present sovereignty, not past sovereignty?
FR. BERNAS: Yes, that would be true because if, as I said, sovereignty is past, it is lost; it is gone; one does not have it.
MR. DAVIDE: In other words, I would repeat, the import of the new proposal is just the same as the original proposal?
FR. BERNAS: No, I would say, it is not because the difference is in the word HAS. The original proposal could be understood to mean that if one is unable physically to exercise control, then he loses the territory; whereas, in the new proposal, even if one is unable to exercise the control, he continues to have the sovereignty. Let me give an example.
MR. DAVIDE: Would the proponent give an example on the matter of Sabah?
FR. BERNAS: Let me choose my own example.
MR. DAVIDE: Can the example not be extended to Sabah?
FR. BERNAS: Let me first give my own example since I am the one giving the example.
MR. DAVIDE: Yes. We will accommodate that, Madam President.
FR. BERNAS: Let us take the example of Batanes. We have jurisdiction over Batanes. We are actually and physically exercising sovereignty and jurisdiction over Batanes. Let us suppose that tomorrow, a very powerful force overcomes our government in Batanes and deprives us of control over that area. We continue to have jurisdiction over it even if the invading force may be able to impose its laws on it by force. We have jurisdiction, but temporarily we are unable to exercise jurisdiction.
MR. DAVIDE: Since the meat of the original proposal and the present proposal would precisely be on the issue of Sabah . . .
FR. BERNAS: On-the issue of Sabah now, Sabah would be included, if it can be proven that we have sovereignty or jurisdiction.
MR. DAVIDE: So, our historic right or legal title to Sabah would now be dropped.
FR. BERNAS: No, it is not being dropped. It is being left unsettled by us because we are not a judicial body capable of passing judgment on a factual issue.
MR. DAVIDE: In other words, to be very clear about it, under the present wording, we have not foreclosed any claim over Sabah because we have historic title over it?
FR. BERNAS: We have not foreclosed any claim to Sabah, period. Neither are we saying that we have.
MR. DAVIDE: That becomes more confusing.
I thank the proponent and thank you, Madam President.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: There are no more interpellators.
THE PRESIDENT: Commissioner de Castro is recognized.
MR. DE CASTRO: May the Honorable Bernas yield to a few questions?
FR. BERNAS: Very gladly.
MR. DE CASTRO: As I get it, we have not foreclosed, as the proponent has said, our claim over Sabah with this phrase "the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction." Am I correct?
FR. BERNAS: We are not making any claim over Sabah. We are not dropping any claim. This prescinds any claim.
MR. DE CASTRO: So, we are not making any claim nor dropping any claim?
FR. BERNAS: No, we are prescinding from any uncertain claim.
MR. DE CASTRO: We are, therefore, losing our historic right or legal title over Sabah. Am I correct?
FR. BERNAS: In my humble opinion, the Gentleman is not correct.
MR. DE CASTRO: Why?
FR. BERNAS: Because we can always claim it under international law. There are accepted modes of establishing a claim over a territory under international law and I am sure that our Constitution will uphold the generally accepted principles of international law.
MR. DE CASTRO: In short, with this proposal on the Article on National Territory, as well as the sponsor's amendment now, we are dropping our claim over Sabah and we leave it to international law to settle our claim on it. Am I correct?
FR. BERNAS: My position is: We are not interfering with whatever the executive department might do about the claim over Sabah.
MR. DE CASTRO: May I know the reason why we dropped the words "historic right or legal title" contained in the Article on National Territory of the 1973 Constitution?
FR. BERNAS: If I will be allowed to repeat what we have repeated over and over again in this session hall, I will repeat the reasons.
MR. DE CASTRO: I ask this because before this amendment, when the phrase was still "government exercises sovereign jurisdiction," the sponsor insisted that we are not dropping our claim over Sabah with that phrase. That is why I am now asking why we are dropping our claim per the sponsor's explanation.
FR. BERNAS: I already said we are not dropping any claim.
MR. DE CASTRO: The sponsor is not dropping any claim but he leaves this claim to be settled under international law and not state it on the provision on National Territory, am I correct?
FR. BERNAS: I said I am prescinding from any claim which may have been made by the government of the Philippines. It is not a question of dropping or continuing; it is a question of prescinding — P-R-E-S-C-I-N-D-I-N-G.
MR. DE CASTRO: Madam President, we are playing with words here. Frankly and forthrightly, why do we not state that we are claiming or we are abandoning our claim? Why play with words?
Thank you.
THE PRESIDENT: Commissioner Abubakar is recognized.
MR. ABUBAKAR: I just want to ask one simple question that requires a simple answer. Has the Philippines ever acquired jurisdiction over Sabah? I mean, within the context of the term "jurisdiction."
FR. BERNAS: We are not answering that question here; we are prescinding from that question here.
MR. ABUBAKAR: But we spoke of jurisdiction. Why are we afraid to face the issue and not answer the question if ever we have acquired jurisdiction over Sabah?
FR. BERNAS: Because I am. not in a position to answer the factual issues of the case. The complicated issues of the case are factual. We have not been given the documents for us to examine. How can we make a judgment over that?
We believe that if we have to make a judgment, it must be a judgment with due process. And due process is a process which decides only after hearing. We have not heard; we have not seen the evidence.
MR. ABUBAKAR: In other words, from the sponsor's reply and from his knowledge and whatever evidence we heard, he does not put in the Record that the Philippines has acquired jurisdiction over Sabah?
FR. BERNAS: We are not.
MR. ABUBAKAR: Thank you.
MR. GUINGONA: Madam President.
THE PRESIDENT: Commissioner Guingona is recognized.
MR. GUINGONA: The honorable Members of this Commission will perhaps recall that last night, I objected to the motion for reconsideration and made a manifestation that today I would make a motion to recommit the Article on National Territory to the committee concerned But this morning, after consultation, I agreed not to object and not to present any motion. However, may I say that I find it unfortunate that the question regarding sovereignty has to be raised. I had the occasion to read the statement of Messrs. Kaplan and Katzenbach wherein, speaking of sovereignty, they said:
There is no more confusing concept in international law than sovereignty. It has been viewed indiscriminately in a number of different meanings by decision-makers and scholars alike.
I regret that we have to distinguish sovereignty, whether it is past, present or future, because 200 years from now, if the Philippines were to acquire a territory and if we follow the interpretation given here that sovereignty refers to present sovereignty, then it would appear we cannot claim sovereignty over the territory that we will acquire 200 years from now because the wording here is "HAS SOVEREIGNTY," and it only refers to the present; it is used in the present tense.
So, I regret very much that this has to be opened. I had hoped that we would let the word "SOVEREIGNTY" remain as it is without the necessity of further interpretation or construction.
Thank you, Madam President.
FR. BERNAS: Madam President, just a word of reply, please.
THE PRESIDENT: Yes, Commissioner Bernas may do so.
FR. BERNAS: In my reply to the interpellation of Commissioner Davide, the only thing I excluded was past sovereignty. I did not exclude whatever we might have in the future; I did not exclude whatever we may have in the future.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: The amendment has been sufficiently debated and none has registered to further interpellate. So, I move that we take a vote on the amendment of Commissioner Bernas.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
We will now proceed to take a vote on the amendment of Commissioner Bernas.
FR. BERNAS: The phrase to be added in substitution will be: "all the other territories over which the PHILIPPINES HAS SOVEREIGNTY OR jurisdiction."
THE PRESIDENT: Those in favor of the proposed amendment, please raise their hand. (Several Members raised their hand.)
Those against the proposed amendment, please raise their hand. (Few Members raised their hand.)
The results show 38 votes in favor of the amendment and 2 against; the amendment is, therefore, approved.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: Madam President, I move that we close the period of amendments on the Article on National Territory.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
MR. RAMA: Madam President, I move that we proceed to the voting on Third Reading on the Article on National Territory.
MR. DAVIDE: Madam President.
THE PRESIDENT: Yes, Commissioner Davide is recognized.
MR. DAVIDE: I think a voting on Third Reading will not be proper at this time because we have just reopened the period of amendments to accommodate one amendment. So, we must first have a voting on Second Reading, not on Third Reading.
THE PRESIDENT: What we have just finished is the voting on the proposed amendment of Commissioner Bernas.
(Article on National Territory)
MR. RAMA: Madam President, to accommodate Commissioner Davide, I move that we approve on Second Reading the Article on National Territory, as amended.
THE PRESIDENT. Those in favor of the approval on Second Reading of the whole Article on National Territory, as amended, please raise their hand. (Several Members raised their hand.)
Those against, please raise their hand. (Few Members raised their hand.)
The results show 39 votes in favor, 3 against and no abstention; the Article on National Territory, as amended, is approved on Second Reading.
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Bengzon be recognized..
THE PRESIDENT: Commissioner Bengzon is recognized.
MR. BENGZON: Madam President, I move for the suspension of the Rules so that we can vote on Third Reading on the Article on National Territory.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
(Article on National Territory)
MR. RAMA: Madam .President, I move that we vote on Third Reading on Proposed Resolution No. 263.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
Printed copies of Proposed Resolution No. 263 were distributed on July 8, 1986, pursuant to Section 27, Rule VI of the Rules of the Constitutional Commission.
Voting on the proposed resolution on Third Reading is, therefore, in order.
The Secretary-General will read the title of the proposed resolution.
THE SECRETARY-GENERAL: Proposed Resolution No. 263, entitled:
FIRST ROLL CALL
THE PRESIDENT: The body will now vote on this resolution and the Secretary-General will call the roll.
THE SECRETARY-GENERAL, reading:
| Abubakar | Yes | Bennagen | Yes |
| Alonto | Yes | Bernas | Yes |
Aquino | Yes | Rosario Braid | Yes |
| Azcuna | Yes | Brocka | |
| Bacani | Yes | Calderon | |
| Bengzon | Yes | Castro de |
MR. DE CASTRO: Madam President.
THE PRESIDENT: Commissioner de Castro is recognized.
MR. DE CASTRO: May I explain my vote?
THE PRESIDENT: Commissioner de Castro has three minutes to explain his vote.
MR. DE CASTRO: Madam President, I vote no, be- cause whatever play of words we have in this Article on National Territory, our country would, in effect, drop its claim to Sabah and to any territory it may want to claim in the future, as stated by Commissioner Guingona. We should also have given the Executive the opportunity to have a hand in so delicate and important an issue like our claim to Sabah. My remarks last night stand.
Thank you, Madam President.
THE SECRETARY-GENERAL, reading:
| Colayco | Yes | Davide | |
| Concepcion | Yes |
MR. DAVIDE: Madam President, may I be allowed to explain my vote very briefly.
THE PRESIDENT: Commissioner Davide has three minutes.
MR. DAVIDE. My vote is no, because I am unable to perceive the difference between the original and modified Bernas' amendment. Both amount to the same thing.
THE SECRETARY-GENERAL, reading:
| Foz | Yes | Gascon | Yes |
| Garcia | Yes | Guingona |
MR. GUINGONA: Madam President, may I be allowed to explain my vote.
THE PRESIDENT: Commissioner Guingona has three minutes.
MR. GUINGONA: Thank you, Madam President.
First of all, I wish to thank Commissioner Bernas for partially accepting my suggestion of changing "sovereign jurisdiction" to "sovereignty or jurisdiction " or "title." I was hoping that even with the non-acceptance of the third word, I might be able to vote in favor, but because of the manifestation made during the interpellations by the honorable Commissioner Davide, notwithstanding my view that the interpretation is not binding, I am constrained to vote no.
THE SECRETARY-GENERAL reading:
| Jamir | Yes | Rigos | Yes |
| Laurel | Yes | Rodrigo | Yes |
| Lerum | Yes | Romulo | Yes |
| Maambong | Yes | Rosales | |
| Monsod | Yes | Sarmiento | Yes |
| Natividad | Yes | Suarez | Yes |
| Nieva | Yes | Sumulong | Yes |
| Nolledo | Yes | Tadeo | Yes |
| Ople | Yes | Tan | Yes |
| Padilla | Yes | Tingson | |
| Muñoz Palma | Treñas | Yes | |
| Quesada | Yes | Uka | Yes |
| Rama | Yes | Villacorta | Yes |
| Regalado | Yes | Villegas | Yes |
| Reyes de los | Yes |
THE PRESIDENT: The Secretary-General will conduct a second call for those who have not registered their votes.
THE SECRETARY-GENERAL, reading:
| Brocka | Rosales |
| Calderon | Tingson |
| Muñoz Palma |
(Article on National Territory)
THE PRESIDENT: The results show 39 votes in favor, 4 against and no abstention.
Proposed Resolution No. 263 is approved on Third Reading. *
MR. RAMA: Madam President.
THE PRESIDENT: The Floor Leader is recognized.
(Article on Citizenship)
MR. RAMA: I move that we vote on Third Reading on Proposed Resolution No. 7.
THE PRESIDENT: Is there any objection? (Silence) The Chair hears none; the motion is approved.
Printed copies of Proposed Resolution No. 7 were distributed on July 9, 1986 pursuant to Section 27, Rule VI of the Rules of the Constitutional Commission.
Voting on the proposed resolution is, therefore, in order.
The Secretary-General will read the title of the proposed resolution.
THE SECRETARY-GENERAL: Proposed Resolution No. 7, entitled:
FIRST ROLL CALL
THE PRESIDENT: The body will now vote on this proposed resolution and the Secretary-General will call the roll.
THE SECRETARY-GENERAL, reading:
| Abubakar | Yes | Castro de | Yes |
| Alonto | Yes | Colayco | Yes |
| Aquino | Yes | Concepcion | No |
| Azcuna | Yes | Davide | Yes |
| Bacani | Yes | Foz | |
| Bengzon | Yes | Garcia | Yes |
| Bennagen | Yes | Gascon | Yes |
| Bernas | Yes | Guingona | No |
| Rosario Braid | Yes | Jamir | Yes |
| Brocka | Laurel | Yes | |
| Calderon | Lerum | ||
| Maambong | Yes | Rodrigo | Yes |
| Monsod | Yes | Romulo | Yes |
| Natividad | Yes | Rosales | |
| Nieva | Yes | Sarmiento | Yes |
| Nolledo | Yes | Suarez | No |
| Ople | Yes | Sumulong | Yes |
| Padilla | No | Tadeo | No |
| Muñoz Palma | Tan | Yes | |
| Quesada | Yes | Tingson | |
| Rama | Yes | Treñas | Yes |
| Regalado | Yes | Uka | Yes |
| Reyes de los | Yes | Villacorta | Yes |
| Rigos | Yes | Villegas | Yes |
THE PRESIDENT: The Secretary-General will conduct a second call for those who have not registered their votes.
THE SECRETARY-GENERAL, reading:
| Brocka | Muñoz Palma |
| Calderon | Rosales |
| Foz | Tingson |
| Lerum |
(Article on Citizenship)
THE PRESIDENT: The results show 36 votes in favor, 5 against and no abstention.
Proposed Resolution No. 7 is approved on Third Reading. *
THE PRESIDENT: The session is suspended.
It was 4:02 p. m.
At 4:06 p.m., the session was resumed with the Honorable Adolfo S. Azcuna, presiding.
THE PRESIDING OFFICER (Mr. Azcuna): The session is resumed.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: Mr. Presiding Officer, I ask that the Chairman of the Steering Committee be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bengzon is recognized.
MR. BENGZON: It is a pleasant surprise, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bengzon may proceed.
MR. BENGZON: May I call the attention of the Members of this Commission that in the Order of Business yesterday, Committee Report No. 18, the draft Article on the Judiciary, was included and a separate sheet was distributed to each Commissioner making the committee report as an additional Reference of Business. It is supposed to have been included in the Calendar of Business so that it could be taken up today, but due to an oversight of the Bills and Index Division, Committee Report No. 18 was not included in the Business for the Day. For this reason, since the Rules has been followed and we agreed informally yesterday that this will be taken up for sponsorship, interpellations and, possibly, for amendments, and considering further that the Chairman and the members of the Committee on the Judiciary are ready to sponsor this committee report, I move that we consider Committee Report No. 18 as part of the Business for the Day so that we can proceed to its consideration.
A MEMBER: I second the motion.
THE PRESIDING OFFICER (Mr. Azcuna): It has been moved and seconded that Committee Report No. 18 on the Judiciary be taken up on Second Reading as part of the Business for the Day.
Is there any objection? (Silence) The Chair hears none; the motion is approved.
(Article on the Judiciary)
PERIOD OF SPONSORSHIP AND DEBATE
MR. BENGZON: Mr. Presiding Officer, I move that we consider Committee Report No. 18 on Proposed Resolution Nos. 14, 18, 52, 75, 78,112, 115, 140, 143, 146, 147, 153, 204, 236, 259, 275, 292 and 313 as reported out by the Committee on the Judiciary.
THE PRESIDING OFFICER (Mr. Azcuna): Is there any objection? (Silence) The Chair hears none; the motion is approved.
Consideration of Committee Report No. 18 is now in order. With the permission of the body, the Secretary- General will read only the title of the committee report without prejudice to inserting in the Record the whole text thereof.
THE SECRETARY-GENERAL: Committee Report No. 18, entitled:
ARTICLE ON THE JUDICIARY.
(The following is the whole text of the draft Article on the Judiciary per C.R. No. 18.)
The Committee on the Judiciary to which were referred the following proposed resolutions:
Proposed Resolution No. 14, introduced by Hon. de los Reyes, entitled:
RESOLUTION TO RETAIN THE PROVISIONS OF ARTICLE X, SECTION 11 (1) OF THE 1973 CONSTITUTION AND TO MAKE THE SAME MANDATORY AND APPLICABLE TO CASES PENDING BEFORE THE COURTS,Proposed Resolution No. 18, introduced by Hon. Azcuna, entitled:
Proposed Resolution No. 52, introduced by Hon. Guingona, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION ARTICLES ON THE JUDICIARY TO SAFEGUARD AND ENHANCE THE INDEPENDENCE OF THE SUPREME COURT,Proposed Resolution No. 75, introduced by Hon. Colayco, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION PROHIBITING THE DESIGNATION OF THE MEMBERS OF THE SUPREME COURT AND OF THE OTHER COURTS CREATED BY LAW TO PERFORM NON JUDICIAL AND ADMINISTRATIVE BODIES OR AGENCIES EXCEPT WITH THE APPROVAL OF THE MAJORITY VOTE OF THE MEMBERS OF THE SENATE AND HOUSE OF REPRESENTATIVES,Proposed Resolution No. 78, introduced by Hon. Davide, entitled:
PROVIDING FOR THE MANNER OF APPOINTMENT TO THE SUPREME COURT AND OTHER COURTS TO ENSURE THE INDEPENDENCE OF THE JUDICIARY,Proposed Resolution No. 112, introduced by Hon. de los Reyes, entitled:
RESOLUTION REMOVING FROM THE SUPREME COURT ADMINISTRATIVE SUPERVISION OVER ALL COURTS AND PERSONNEL THEREOF AND VESTING THE SAME IN A JUDICIAL COMMISSION AND FOR OTHER PURPOSES,Proposed Resolution No. 115, introduced by Hon. Davide, entitled:
RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION A PROVISION PROHIBITING A GENERAL REVAMP OF THE JUDICIARY BY LEGISLATION,Proposed Resolution No. 140, introduced by Hon. Suarez entitled:
RESOLUTION PROVIDING FOR THE SECURITY OF TENURE OF THE MEMBERS OF THE JUDICIARY,Proposed Resolution No. 143, introduced by Hon. Davide, entitled:
RESOLUTION PROHIBITING COURTS FROM ISSUING MINUTE RESOLUTIONS, AMENDING FOR THE PURPOSE SECTION NINE OF ARTICLE TEN OF THE 1973 CONSTITUTION,Proposed Resolution No. 146, introduced by Hon. Regalado, entitled:
RESOLUTION ON THE SPECIFICITY AND REQUISITES FOR THE EXERCISE OF THE POWER OF THE SUPREME COURT TO DECLARE THE UNCONSTITUTIONALITY OR INVALIDITY OF TREATIES, EXECUTIVE AGREEMENTS AND LAWS,Proposed Resolution No. 147, introduced by Hon. Regalado, entitled:
RESOLUTION PROVIDING FOR THE REQUISITES FOR THE IMPOSITION OF THE DEATH PENALTY IN CRIMINAL CASES BY THE SUPREME COURT,
Proposed Resolution No. 153, introduced by Hon. Romulo, entitled:
RESOLUTION PROPOSING THE CREATION OF A JUDICIAL COUNCIL,Proposed Resolution No. 204, introduced by Hon. Colayco, entitled:
RESOLUTION PROVIDING FOR THE APPOINTMENT OF THE MEMBERS OF THE SUPREME COURT, THE INTERMEDIATE APPELLATE COURT, AND OF THE OTHER COURTS ESTABLISHED BY LAW, INCLUDING THE SANDIGANBAYAN,Proposed Resolution No. 236, introduced by Hon Romulo, entitled:
RESOLUTION PROPOSING A PROVISION IN THE NEW CONSTITUTION AUTHORIZING THE CHIEF JUSTICE TO ADDRESS THE LEGISLATURE,Proposed Resolution No. 259, introduced by Hon. Treñas, entitled:
RESOLUTION TO INCLUDE IN THE PROPOSED CONSTITUTION A PROVISION REQUIRING APPROVAL BY THE SUPREME COURT OF RULES CONCERNING PLEADING, PRACTICE AND PROCEDURE PROMULGATED BY QUASI-JUDICIAL BODIES BEFORE THESE RULES CAN BECOME EFFECTIVE,Proposed Resolution No. 275, introduced by Hon. Treñas, entitled:
RESOLUTION TO INCLUDE IN THE PROPOSED CONSTITUTION SECTION ELEVEN, PARAGRAPH (1), ARTICLE X OF THE 1973 CONSTITUTION WITH MODIFICATIONS AND WITH AN ADDITIONAL PARAGRAPH TO FURTHER STRENGTHEN THE COMPULSORY CHARACTER OF SAID PROVISION,Proposed Resolution No. 292, introduced by Hon. Padilla, entitled:
RESOLUTION PROVIDING FOR APPEAL FROM JUDGMENT OF ACQUITTAL WHEN IT IS MANIFESTLY AGAINST THE EVIDENCE AND IS CONTRARY TO LAW,Proposed Resolution-No. 313, introduced by Hon. Suarez, entitled:
RESOLUTION TO PROVIDE FOR AN ANNUAL BUDGET FOR THE JUDICIAL DEPARTMENT TO INSURE ITS INDEPENDENCE,has considered the foregoing proposed resolutions and has the honor to report them back to the Constitutional Commission of 1986 with the recommendation that all of the listed proposed resolutions be approved as revised, amended or adopted by the Committee and as hereinafter described.
Each proposed resolution accepted by the Committee was not considered and amended on a line-by-line basis. Rather, the Committee adopted the basic concept or substance of the proposed resolutions and embodied it in the attached draft of the Article on the Judiciary. Thus, in this report, we indicated hereunder in which section of the proposed Article on the Judiciary a particular proposed resolution is reflected.
| Proposed Resolution | Section Embodied In |
| No. 14 (de los Reyes) | Sec. 14 |
| No. 18 (Azcuna) | Sec. 7 (5) |
| No. 52 (Guingona) | Sec. 13 & 15 |
| No. 75 (Colayco) | Sec. 8 |
No. 78 (Davide) | Sec. 6 |
| No. 112 (de los Reyes) | Sec. 6 |
| No. 115 (Davide) | Sec. 2, 2nd Para. |
| No. 140(Suarez) | Sec. 2, 2nd Para. |
| No. 143 (Davide) | Sec. 12, 2nd Para. |
| Nos 146 & 147 (Regalado) | Sec. 3 (2) |
| No. 153(Romulo) | Sec. 6 |
| No. 204 (Colayco) | Sec. 6 |
| No. 236 (Romulo) | Sec. 16 |
| No. 259 (Treñas) | Sec. 7 (5) |
| No. 275 (Treñas) | Sec. 14 |
| No. 292 (Padilla) | Sec. 12, 3rd Para. |
| No. 313 (Suarez) | Sec. 15 |
We have recommended to the Committee on Transitory Provisions the following:
"Section _____. The Supreme Court shall adopt for itself and the lower courts a systematic plan to expedite the decision or resolution of cases or matters filed with the Supreme Court or the lower courts prior to the effectivity of this Constitution."
"Section _____. All courts existing at the time of the ratification of this constitution shall continue and exercise their jurisdiction, until otherwise provided by law in accordance with this constitution, and all cases pending in said courts shall be heard, tried, and determined under the laws then in force. The provisions of the existing rules of court not inconsistent with this constitution shall remain operative unless amended, modified, or repealed by the Supreme Court or the National Assembly."
The Committee hereby gratefully acknowledges the valuable contribution of the various resource persons who either appeared in person or submitted position papers.
Chairman
Committee on the Judiciary
ARTICLE _______
THE JUDICIARY
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes 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.
SECTION 2. The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 7 hereof.
No law shall be passed reorganizing the judiciary when it undermines security of tenure.
SECTION 3. (1) The Supreme Court shall be composed of a Chief Justice and ten Associate Justices. It may sit en banc or in two divisions.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard and decided by the Supreme Court en banc, and no treaty, international or executive agreement, or law may be declared unconstitutional without the concurrence of a majority plus one of the members who actually participated when the case was submitted for decision. The same number of votes shall be required for the imposition of the death penalty.
(3) All other cases including those involving the application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations which under the rules of court are required to be heard en banc shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision.
(4) Cases heard by a division shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision but if such required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
SECTION 4. (1) No person shall be appointed member of the Supreme Court unless he is a natural-born citizen of the Philippines, at least forty years of age, and has for fifteen years or more been a judge of a lower court or engaged in the practice of law in the Philippines.
(2) The National Assembly shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a natural-born citizen of the Philippines and a member of the Philippine Bar.
SECTION 5. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by a Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
SECTION 6. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the
Chief as ex-officio Chairman, the Minister of Justice and a representative of the National Assembly as ex-officio members, a representative of the integrated bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector.
(2) The regular members of the Council shall be appointed by the President for a term of four years. Of the members first appointed, the representative of the integrated bar of the Philippines shall serve for four years, the professor of law for three years, the retired justice for two years, and the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex-officio and shall keep a record of the proceedings of the Council.
(4) The regular members of the Council shall receive such emoluments, and the ex-officio members shall receive such allowances, as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.
(5) The Council shall have the principal function of recommending appointee to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
SECTION 7. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the rules of court may provide, final judgments and decrees of lower courts in —
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, ordinance, executive order, proclamation, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is death or life imprisonment.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations public interest may require. Such temporary assignment shall not last longer than six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall take effect upon approval by the Supreme Court.
(6) Appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
SECTION 8. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial and/or administrative functions.
SECTION 9. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
SECTION 10. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by the vote of a majority plus one of the Members who actually participated when the matter was submitted for resolution.
SECTION 11. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member dissenting or abstaining from a decision shall state the reason for his dissent or abstention. The same requirement shall be observed by all lower collegiate courts.
SECTION 12. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.
An appeal by the State and/or the offended party from a judgment of acquittal may be allowed in 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.
SECTION 13. The salary of the Chief Justice and of the Associate Justices of the Supreme Court and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of ____________ and each Associate Justice ______________ pesos.
SECTION 14. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
(2) 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.
(3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties.
SECTION 15. An amount equivalent to not less than two percent of the national budget shall be automatically appropriated and regularly released for the judiciary.
SECTION 16. The Supreme Court shall, within thirty days from the opening of each regular session of the National Assembly, submit to the President and the National Assembly an annual report on the operations and activities of the judiciary. The Chief Justice shall address the National Assembly at the opening of each regular session.
MR. RAMA: May I ask that the sponsor of the Article on the Judiciary, Commissioner Concepcion, be recognized?
THE PRESIDING OFFICER (Mr. Azcuna): The session is suspended.
It was 4:09 p.m.
At 4:43 p.m., the session was resumed.
THE PRESIDING OFFICER (Mr. Azcuna): The session is resumed.
The honorable Commissioner Concepcion is now recognized to sponsor the proposed Article on the Judiciary.
MR. CONCEPCION: Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. But before I proceed, I would like to present my regrets for being out, not being in the session hall when the Committee was called to report. I thought we had a recess. And considering our experience last night, when most of us were unable to reach our homes until late in the evening, I thought it was an opportune moment to get some reinforcement, if I may use the expression. And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes 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 or instrumentality of the government.Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22, had not finished the Constitution; it had barely agreed on the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacañang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions, of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word made famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacañang felt the danger of its disapproval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervisions not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case.
Under the Constitution, the President may declare martial law in case of invasion, insurrection or rebellion or imminent danger thereof. If public safety or public interest requires it, he may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.
The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past.
I hope the Commissioners who are not lawyers will bear with me as I explain further because the matter is really a technical one. The Senate and the House had, under the 1935 Constitution, a House Electoral Tribunal and a Senate Electoral Tribunal. Our friend, Mr. Lorenzo Tañada, was the only member of the minority party in the Senate. The Constitution provided that electoral protests involving senators would be a nine-man Senate Electoral Tribunal. Of these nine, three were to be members of the majority party in the Senate and another three members for the minority party in the Senate; and lastly, three Justices of the Supreme Court. After the majority party had elected its three representatives to the Electoral Tribunal, and when it came to the nominations of the three senators for the opposition, Senator Tañada said that he could not nominate any senator except himself because there was no other senator belonging to the minority. The majority then nominated two senators belonging to the majority to form part of the group of three to represent the minority. As a consequence, the majority would actually have had five members: the Supreme Court, three and the minority, one. When the issue was brought to the Supreme Court, the defense put up by the government was that the matter involved a political question. But in that case of Tañada vs. Cuenco, the Court held that the Senate Electoral Tribunal was to consist of nine senators, because the possible partisanship of the three members for the majority would be offset by that of the three members of the minority. The group of three members of the Supreme Court constituting the third group would ensure the impartiality in the decision of the Electoral Tribunal. The defense of the political question was rejected because the issue was clearly justiciable.
We still had another important case. It was early after liberation. You probably remember that during World War II, President Roosevelt of the US announced over the television that the American government would compensate or indemnify all damages we may suffer during the war up to the last carabao. Liberation came and the American Congress appropriated $1 billion for war damages but with strings attached. We had to give them parity rights. The question was whether or not we should grant these rights because of the issue in the election held in 1946. The majority party was in favor and another political party opposed it, because there was $1 billion together with the parity rights.
In order to give parity rights to the Americans, it was necessary, however, to get a qualified majority in both Houses of Congress. But the number of votes available to the majority party was a few votes short of the required qualified majority. At that time there were half a dozen members elected in districts believed to be dominated by leftists. By the way, the members of the minority belonged to what was known as the Democratic Alliance. These members of the minority were suspended upon the ground that their election was tainted with fraud and terrorism.
Then the constitutional amendment granting parity rights was taken and got the qualified majority required by the Constitution. Assailed in the Supreme Court, the Supreme Court held that the question whether the suspended Members should be counted in the determination of the required qualified majority was a political question. It was obvious that the members of the Democratic Alliance were suspended to enable the ruling party to get the votes necessary for the approval of the bill calling a plebiscite on the parity rights. When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of X Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also, another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.
Section 2 of the draft prepared by the Committee is merely the second sentence of Section I of Article X of the 1973 Constitution which states, and I quote:
The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 7 hereof.
There is a second paragraph which reads:
No law shall be passed reorganizing the judiciary when it undermines security of tenure.
This provision reflects the apprehension in a number of resolutions referred to the Committee: the resort to judicial reorganization in order to circumvent the security of tenure.
Section 3 of the draft says:
The Supreme Court shall be composed of a Chief Justice and ten Associate Justices. It may sit en banc or in two divisions.
Under the 1973 Constitution, the Supreme Court shall be composed of a Chief Justice and 14 Associate Justices. It may sit en banc or in two divisions. The second, third and fourth subsections or paragraphs of this section state, and I quote:
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard and decided by the Supreme Court en banc, and no treaty, international or executive agreement, or law may be declared unconstitutional without the concurrence of a majority plus one of the members who actually participated when the case was submitted for decision. The same number of votes shall be required for the imposition of the death penalty.
The present Constitution requires 10 votes of the Supreme Court. Our draft requires only a majority plus one:
(3) All other cases including those involving the application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations which under the rules of court are required to be heard en banc shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision.
(4) Cases heard by a division shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision but if such required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
There are two important changes introduced by this section: the court may sit in two divisions or en banc. As usual, a majority is necessary to have a quorum. But to render a decision, only a majority plus one is necessary to declare a law unconstitutional. Whereas under the present Constitution the Supreme Court is composed of 15 members, the vote of 10 members is required to declare a law unconstitutional. Often, however, the actual membership of the court is limited to 12 or even 11. To require 10 votes for the declaration of unconstitutionality, the votes of three or four members would prevail over those of a clear majority of the Court members. This has happened several times in the past. The two-thirds requirement, therefore, strengthens the executive and weakens judicial power.
The first paragraph of Section 4 of the draft states:
(1) no person shall be appointed member of the Supreme Court unless he is a natural-born citizen of the Philippines, at least forty years of age, and has for fifteen years or more been a judge of a lower court or engaged in the practice of law in the Philippines.
Several important changes are thereby introduced. The present law requires 10 years as a judge of a court of record to be qualified for appointment to the Supreme Court. Our draft provision increases the requirement to 15 years.
Besides, we have eliminated the words "of record" in the phrase "court of record" because all lower courts are now courts of record.
Paragraph (2) of the draft Section 4 provides:
The National Assembly shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a natural-born citizen of the Philippines and a member of the Philippine Bar.
Section 5 reads:
The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by a Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
The choice of the President in filling vacancies in the judiciary is limited to a list of nominees prepared or submitted by a Judicial and Bar Council of which we will speak later more in detail.
Moreover, the "appointments by the President need no confirmation" by another body.
This is a provision suggested by practicing lawyers upon the ground that in the past judges had to kowtow to members of the legislative body to get an appointment or at least to see the Chairman of the Committee on the Judiciary in Congress and request his support to the confirmation of his appointment. The idea is to forestall as much as possible the influence of partisan politics.
Section 6 of the draft is to the effect that:
A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex-officio Chairman, the Minister of Justice and a representative of the National Assembly as ex-officio members, a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector.The Committee sought to have in the Council a representation for the major elements of the community.
Paragraph 2 of the draft of Section 5 provides:
The regular members of the Council shall be appointed by the President for a term of four years.
The phrase "regular members" refers to all those who are not ex-officio members.
The paragraph continues:
. . . Of the members first appointed, the representative of the Integrated Bar of the Philippines shall serve for four years, the professor of law for three years, the retired justice for two years, and the representative of the private sector for one year.(3) The Clerk of the Supreme Court shall be the Secretary ex-officio and shall keep a record of the proceedings of the Council.
(4) The regular members of the Council shall receive such emoluments, and the ex-officio members shall receive such allowances as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.
The reason for this should be obvious. The Council will actually have to work throughout the year, screening nominees for 2,200 positions in the bench.
The last paragraph of Section 6 is:
(5) The Council shall have the principal function of recommending appointees to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
Pursuant to Section 7 of the draft:
The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.At this point, I might invite attention to the fact that the members of the Committee are aware of the circumstance that in any other Committee the death penalty was voted to be abolished. Should the opinion of the Commission be in favor of elimination of the death penalty, we will adjust this paragraph.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may provide, final judgments and decrees of lower courts in —
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, ordinance, executive order, proclamation, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is death or life imprisonment.
(e) All cases in which only an error or question of law is involved.
Justice Colayco is kind enough to suggest that the reading of the draft be assigned to our Secretary-General. By the way, before she does so, I wish to thank the Members of the Commission for their attention in adopting means for my comfort today.
Our Secretary-General will continue the reading of the draft without prejudice to the interpellations later. I will try to answer as best I can.
THE SECRETARY-GENERAL, reading:
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not last longer than six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall take effect upon approval by the Supreme Court.
(6) Appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
SECTION 8. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial and/or administrative functions.
SECTION 9. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
SECTION 10. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by the vote of a majority plus one of the Members who actually participated when the matter was submitted for resolution.
SECTION 11. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member dissenting or abstaining from a decision shall state the reason for his dissent or abstention. The same requirement shall be observed by all lower collegiate courts.
SECTION 12. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.
An appeal by the State and/or the offended party from a judgment of acquittal may be allowed in 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.
SECTION 13. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of _________ and each Associate Justice __________ pesos.
SECTION 14. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
(2) 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.
(3) Upon the expiration of the corresponding period, certification of this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties.
SECTION 15. An amount equivalent to not less than two percent of the national budget shall be automatically appropriated and regularly released for the judiciary.
SECTION 16. The Supreme Court, shall, within thirty days from the opening of each regular session of the National Assembly, submit to the President and the National Assembly an annual report on the operations and activities of the judiciary. The Chief Justice shall address the National Assembly at the opening of each regular session.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Nolledo be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Nolledo is recognized.
MR. NOLLEDO: Thank you, Mr. Presiding Officer.
Will Commissioner Concepcion please yield to interpellations?
MR. CONCEPCION: With pleasure.
MR. NOLLEDO: Thank you.
Before I ask my questions, I do not know if it is proper for me to state that the 1973 Constitution was ratified by barangay assemblies as the Gentleman stated. There were pictures produced by the previous administration showing people raising their hands and Marcos claimed that they were voting for the Constitution. But the questions asked, according to our information, were these: "Sino ang gustong kumain ng siopao at uminom ng Coca-Cola at Pepsi? " So the people raised their hands, a picture was taken of them and the President concluded that they ratified the 1973 Constitution which is one of our working drafts. I do not know also if it is inappropriate for me to state, in connection with the Chief Justice's narration of the Javellana case, that the Honorable Napoleon Rama and I were among those incarcerated. Napoleon Rama was incarcerated in Fort Bonifacio; I was incarcerated in Camp Crame.
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice to settle actual controversies . . ." The term "actual controversies" according to the Commissioner should refer to questions which are political in nature and, therefore, the courts should not refuse to decide those political questions. But do I understand it right that this is restrictive or only an example? I know there are cases which are not actual and yet the court can assume jurisdiction. An example is the petition for declaratory relief.
May I ask the Commissioner's opinion about that?
MR. CONCEPCION: The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO: The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION: Yes.
MR. NOLLEDO: And so, is this only an example?
MR. CONCEPCION: No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO: Because of the expression "judicial power"?
MR. CONCEPCION: No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide.
MR. NOLLEDO: I thank the Commissioner.
I would like to ask the second question with respect to the second paragraph of Section 2, which reads: "No law shall be passed reorganizing the judiciary when it undermines security of tenure."
The Supreme Court ruled in some cases that there is no vested right to public office and that if a public office is abolished, security of tenure is not adversely affected.
Would the Gentleman say then that that doctrine is changed by this proposed provision?
MR. CONCEPCION: Certainly. First, reorganization should not be resorted to for the purpose of dismissing any judge.
MR. NOLLEDO: Thank you.
The third question . . .
MR. CONCEPCION: I think Commissioner Davide has filed a resolution on that point and he can explain his thoughts on the matter.
MR. NOLLEDO: Thank you.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Davide is recognized.
MR. DAVIDE: Thank you, Mr. Presiding Officer.
This particular proposal was based on a resolution filed by this representation and amended basically by the amendment of Commissioner Padilla. We realize, of course, that in 1980 for instance, under the guise of a judicial reorganization, the so-called judicial reorganization was made. So, there was a general revamp of the judiciary. Supposedly, the intention of the revamp was to attain economy, but actually the main purpose of that general revamp was to eliminate from the judiciary people whom the leadership at the time believed to be not loyal to the administration and to replace them with people who were loyal to the administration. Necessarily, the result was massive expulsion or ouster of several people, especially of those who had no padrinos, as well as the entry into the judiciary of people who had the necessary connections with the politicians of the dispensation at the time.
I recall very well that despite the creation of the Integrity Council to effect the revamp, the recommendations of the Integrity Council were disregarded. I know personally of an assemblyman who recommended somebody whose name was in the final list, but eventually another list was submitted to Malacañang and what happened was that this gentleman, who was recommended and who already gave a treat to the assemblyman, found himself without any position. Unfortunately, he was holding at the time a position in the lower courts of the judiciary. And so, he lost both positions because somebody replaced him and he was not able to get the appointment that was supposedly intended for him on the basis of the first list that was submitted.
We cannot protect the independence of the judiciary nor can we enhance its independence if a revamp of the judiciary can be made at any time by the National Assembly for any reason whatsoever. So, this proposal seeks to enhance, preserve, promote and maintain a really authentic independence of the judiciary.
MR. NOLLEDO: The Gentleman must be referring to the case of de la Llana vs. Alba, where the Supreme Court speaking through former Chief Justice Enrique Fernando said that abolition of public office does not involve security of tenure. So, as I understand it from Commissioner Davide, this ruling is now obsolete if we adopt this provision.
MR. DAVIDE: That was a general doctrine and in this particular case, we limit ourselves to our position on the security of tenure in the judiciary.
MR. NOLLEDO: I do not know if any member of the Committee is willing to enlighten me on the meaning of international agreement because, as I understand it, when we talk of executive agreement, we talk of two chief executives entering into an agreement on tariff, customs, etc. But it seems to me this is my first time to hear the term "international agreement" because as I understand it, when we call it an international agreement, we must be referring necessarily to a treaty.
MR. CONCEPCION: Mr. Presiding Officer, there are conventions, for example, the Hague Convention, where the word "treaty" is not proper for the set of rules incorporated into these international agreements.
MR. NOLLEDO: If the Commissioner does not mind, I presented Resolution No. 188, which is not mentioned in the committee report, entitled:
RESOLUTION TO ENSHRINE IN THE ARTICLE ON THE JUDICIARY OF THE NEW CONSTITUTION, ETHICAL RULES ON QUALIFICATIONS AND CONDUCT OF MEMBERS OF THE JUDICIARY.It is unfortunate that the reputation of our judges is not so good and so, I do not know what is the sense of the Committee. I would like to tell the members in advance that I intend to present this as an amendment for consideration — that in connection with Section 4, perhaps we can add a subsection there which may run like this: THAT NO ONE SHALL BE APPOINTED AS MEMBER OF THE JUDICIARY UNLESS HE IS A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY AND INDEPENDENCE and THAT THE ACTUATIONS OF A MEMBER OF THE JUDICIARY IN OR OUTSIDE THE COURT MUST BE BEYOND REPROACH.
This is similar to a provision in "Canons of Judicial Ethics," but history states that those provisions are more honored in breach than in observance.
MR. CONCEPCION: That is right.
MR. NOLLEDO: So, when we discipline a member of the judiciary, perhaps it will strengthen the intention if we can quote a constitutional mandate that he has not acted beyond reproach as enjoined by the Constitution.
MR. CONCEPCION: The Committee is well aware of the fact that our task is to make good laws. But it is also fully aware of the fact that no matter how good the laws are, if the persons chosen to enforce those laws are not the right persons, they may be doing a disservice to the country. In connection with the judges, that is the reason for the Judicial and Bar Council.
MR. NOLLEDO: When we set forth these moral qualifications, they may be considered guidelines by the Judicial and Bar Council when they determine the qualifications of prospective appointees.
MR. CONCEPCION: But that is understood: honesty, competence, etc. That is the only purpose of the Judicial and Bar Council.
MR. NOLLEDO: Just two more questions, if Commissioner Concepcion does not mind.
Section 7 (3) on page 4 says: "Assign temporarily judges of lower courts to other stations as public interest may require." I would like to know the meaning of "other stations" because as now constituted by law, we have regional trial courts within a particular region. So when a judge is assigned temporarily to another court within a region, is that an assignment to other stations or not?
MR. CONCEPCION: Yes, Commissioner.
MR. NOLLEDO: If my memory serves me right, there is an obiter dictum of the Supreme Court that it is not considered an assignment because it is within the region. A station is different from a region.
MR. CONCEPCION: The appointments are extended for a particular branch of a given region but one branch is different from the others. A judge may have a good assignment — in terms of housing facilities, etc. — and he may be threatened to be transferred to a place where those facilities are absent.
MR. NOLLEDO: Thank you.
My last question is about my Resolution No. 367, entitled: RESOLUTION TO PROVIDE IN THE NEW CONSTITUTION THAT THE DEATH PENALTY IMPOSED ON AN 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.
I am mentioning this in advance so that he may discuss with the members of the Committee, if it will be acceptable to them that the proposed resolution be included in Section 14 (4) on page 6.
MR. CONCEPCION: There really is a problem of coordination. The question refers to cases where the death penalty has been imposed, whereas our impression is that the majority of another committee has voted to abolish the death penalty. That is why I make reference to the fact that insofar as the jurisdiction of the Supreme Court is concerned, there is a paragraph there where the death penalty or capital punishment or life imprisonment is referred to. But whether or not the death penalty shall be imposed is subject to the decision of the Commission.
If the Commissioner has time to go over the draft proposal of the Committee, he will notice that the Committee has tried to be as polite as possible to judges so as not to impair their image. We should be the first to protect the image of the judges. It will also be noted that there are other provisions in our draft which try to ensure better compliance with the present rules. For instance, the date of submission of the case must be certified in its record. The date of expiration of the period prescribed by law must similarly be certified in the record. We do not say, "Do this or else," because that would be treating judges like kids. But this is the full implication of the provisions referred to.
MR. NOLLEDO: This is definitely the last question, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Gentleman has one minute more.
MR. NOLLEDO: Commissioner Concepcion, this is in connection with Section 14. It was the sense of the 1971 Constitutional Convention to consider the time limit for decision of cases as mandatory, but the Supreme Court, in many cases, ruled that this should only be directory.
What is now the sense of the Committee with respect to Section 14 (1) which reads:
(1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
MR. CONCEPCION: It is mandatory, but we do not use the word "mandatory"; instead we say "must."
MR. NOLLEDO: How would the Commissioner interpret that? Is that directory or mandatory?
MR. CONCEPCION: It is not directory; it is an order that is why we say "must."
MR. NOLLEDO: The Supreme Court ruling says "must" or "shall" in view of the clogging of cases which made it impossible for the Supreme Court to decide the cases within the stated period.
MR. CONCEPCION: We have not only said "it must do this" but we also say that the Supreme Court shall devise a plan to unclog the dockets of the courts. Furthermore, the Gentleman will notice that there is an addition in the draft which says: "The Chief Justice shall appear before or address the National Assembly at the opening of its regular session." The idea is to en- courage him by giving him a better image, and at the same time allow him to confront the representatives of the judiciary and convey their criticisms on the operation of courts.
We did not want to put it in such a language as would debase the dignity of the bench, but expressed our idea in a polite language.
THE PRESIDING OFFICER (Mr. Azcuna): The time of the Commissioner has expired.
MR. NOLLEDO: Thank you very much.
THE PRESIDING OFFICER (Mr. Azcuna) The Floor Leader is recognized.
MR. RAMA: Mr. Presiding Officer, I ask that Commissioner Padilla be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Padilla is recognized and is given 15 minutes.
MR. PADILLA: Mr. Presiding Officer and Commissioner Davide, in response to a question propounded by Commissioner Nolledo on the proposed provision that reads: "No law shall be passed reorganizing the judiciary when it undermines security of tenure," may I be permitted to say that the Batasang Pambansa enacted a Judiciary Reorganization Act which was assailed as illegal and unconstitutional. However, the Act was upheld as valid, and the result was the reorganization of the courts, including the Court of Appeals which was renamed the Intermediate Appellate Court; the Courts of First Instance, renamed Regional Trial Courts; and the Municipal Courts renamed Municipal Trial Courts. This resulted in legislating out of their judicial offices some members of the courts lower than the Supreme Court. That said Reorganization Act not only undermined the independence of the judiciary, but, likewise, was a direct assault against the principle of the security of tenure of judicial officers.
I recall, Mr. Presiding Officer, that one of my first cases before the Supreme Court when I was appointed Solicitor General in 1954 was the case of Ocampo vs. Secretary of Justice. At that time, Congress then approved a law abolishing the positions of judges-at-large and cadastral judges. The 1935 Constitution, as well as the subsequent Constitution, recognized district judges. And the anomalous practice was that sometimes a judge-at-large or a cadastral judge who did not have a judicial district of his own was assigned to a particular trial court to hear a particular case. That was bad, because the designation would be made by the Secretary of Justice and presumably upon the suggestion or direction of the President.
In that case, while I subscribe to the principle of an independent judiciary, I invoked the defense that the law abolishing judges-at-large, or cadastral judges which are not recognized in the 1935 Constitution for it only recognizes district judges, is not a violation of the Constitution but is an implementation thereof. That defense was sustained by three or four of the justices, although the majority still were of the opinion and held that insofar as it could legislate judges out of their judicial position, even if their appointments were judges-at-large or cadastral judges, it was unconstitutional because it violated the tenure of office of those judges-at-large and cadastral judges. That law did not receive the sufficient number of votes, two-thirds of the members of the Supreme Court, to declare it unconstitutional. But even though it was not declared unconstitutional, the fact remains that the majority of the court reiterated the sacred rule, the judicial sanction, I might say, to the fundamental principle of security of tenure to assure the independence of the judiciary.
Mr. Presiding Officer, this sentence, "No law shall be passed reorganizing the judiciary when it undermines security of tenure" was based on a resolution proposed by Commissioner Davide and was restated in this report of the Committee. What is important is the word "re- organizing," as well as the more important phrase "security of tenure," so that the legislature should not be allowed to pass a bill to revamp or reorganize, or use any other term, when its purpose and its effect would be to undermine the security of tenure of judicial officers.
Thank you, Mr. Presiding Officer.
MR. CONCEPCION: Mr. Presiding Officer may I add a few words.
It is not so important whether the President will or will not use the power to reorganize the judiciary. But so long as the power is vested in him, that serves as a sword that will always exist over the heads of all judges. So at all times, judges may have insecurity of tenure.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Bernas be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bernas is recognized.
FR. BERNAS: Mr. Presiding Officer, may I just be allowed to ask some clarificatory questions on the same provision that was being discussed just a while ago.
Do I understand the sponsor correctly that this is not a prohibition of reorganization?
MR. CONCEPCION: That is right.
FR. BERNAS: It is not a prohibition of reorganization. In case there is an attempt to reorganize, it must be done in such a way that it does not undermine the security of tenure of judges.
MR. CONCEPCION: That is correct.
FR. BERNAS: And whether or not their attempted organization undermines security of tenure, that is something which is to be decided upon by the Supreme Court.
MR. CONCEPCION: That is right.
FR. BERNAS: In the same way that it was done in the past.
MR. CONCEPCION: Not in the same way, because in the past the number of votes necessary for constituting a majority was offset by the minority, but under our Constitution, we need 10 votes or at least two-thirds of all the Members.
FR. BERNAS: Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question doctrine?
MR. CONCEPCION: No.
FR. BERNAS: It is not.
MR. CONCEPCION: No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS: So, I am satisfied with the answer that it is not intended to do away with the political question doctrine.
MR. CONCEPCION: No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas.
FR. BERNAS: So, this is not an attempt to solve the problems arising from the political question doctrine.
MR. CONCEPCION: It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.
FR. BERNAS: Another question, Commissioner Concepcion.
Line 27 reads: "All other cases including those involving the application or operation of presidential decrees . . ." I understand this to have reference to the application or operation of the presidential decrees, but not to the presidential decree itself.
MR. CONCEPCION: That is right.
FR. BERNAS: So, for purposes of invalidating the application or operation, he needs this type of vote.
MR. CONCEPCION: Yes.
FR. BERNAS: For purposes of invalidating the decree itself, what kind of vote is needed?
MR. CONCEPCION: We will require a majority plus one, of those Members who actually participated in the deliberation.
FR. BERNAS: So it is the same as in the preceding paragraph.
MR. CONCEPCION: That is right.
FR. BERNAS: Thank you.
On page 5, line 5 says: "when they reach the age of seventy years or become incapacitated . . ." Who will decide whether they have become incapacitated?
MR. CONCEPCION: The Committee has not decided on that. But, presumably, the Judicial and Bar Council would be consulted about it and, of course, the Supreme Court.
FR. BERNAS: But if an actual case arises, and we notice that a particular Justice of the Supreme Court seems to be incapacitated and his capacity is challenged, who would decide on that?
MR. CONCEPCION: No. That is not settled by the draft proposal.
FR. BERNAS: Could that matter be settled by ordinary legislation?
MR. CONCEPCION: As to the procedure, I suppose so.
FR. BERNAS: It could be.
MR. CONCEPCION: Yes.
FR. BERNAS: May I go back to page 4, Section 8 which says:
The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial and/or administrative functions.
Is this also a prohibition against justices giving advisory opinions to the President?
MR. CONCEPCION: No, not that.
FR. BERNAS: Thank you, Commissioner.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Rodrigo be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Rodrigo is recognized.
MR. RODRIGO: Will the sponsor yield to a few questions for clarification?
MR. CONCEPCION: With pleasure.
MR. RODRIGO: Mr. Presiding Officer, I want to ask questions on some novel provisions in this proposal. At present, the Constitution provides for a definite number of the votes of justices in order to decide certain matters, for example, at least 10. But here the basis is a majority plus one, of the Members who actually participated. In case of an en banc court, there are, at most, 11 justices.
MR. CONCEPCION: That is right.
MR. RODRIGO. How many of them have to participate?
MR. CONCEPCION: Six of them have to participate.
MR. RODRIGO: So, if only six participated, then the vote of four . . .
MR. CONCEPCION: Four plus one, because three is not a majority — out of six, it is only one-half. So, four plus one, five.
MR. RODRIGO. So, in an en banc decision, even if there are 11 justices actually in the Supreme Court, a vote of only four can already . . .
MR. CONCEPCION: No, a vote of five.
MR. RODRIGO: A vote of four.
MR. CONCEPCION: No; a majority plus one.
MR. RODRIGO: Majority plus one.
MR. CONCEPCION: That is right.
MR. RODRIGO: What is the minimum number of those who should participate?
MR. CONCEPCION: There must always be a quorum.
MR. RODRIGO: Six?
MR. CONCEPCION: Yes, at least, for an en banc decision.
MR. RODRIGO: Let us say that only six participated. Then, mitad mas uno will be . . .
MR. CONCEPCION: That is right, because mitad is not majority.
MR. RODRIGO: Mitad mas uno.
MR. CONCEPCION: No, majority plus one.
MR. RODRIGO: Concurrence of a majority plus one. That is why I wanted that clarified. So, a vote of five is enough to render a decision of the Supreme Court en banc, even if there are 11 justices, although five is not a majority of all the members of the court. In very important matters, is it not better to provide for a vote of a majority of all the justices?
MR. CONCEPCION: It will be better in the court where it is always full. But our experience has shown that during martial law, the majority seldom, if ever, had been fully composed of the number prescribed in the Constitution.
MR. RODRIGO: I mean a majority of all the actual members of the Supreme Court.
MR. CONCEPCION: Yes, but if there are vacancies . . .
MR. RODRIGO: Then, of all the actual members of the Supreme Court.
MR. CONCEPCION: The problem is this: Former Solicitor General Padilla mentioned the case of Ocampo vs. Secretary of Justice. The votes there were seven to four. The four won the case because the law then required eight votes, and we do not want that to be maintained. Secondly, we want the court to act expeditiously in the disposal of cases. And, thirdly, one judge of a lower court can declare a law unconstitutional. Why not five from the Supreme Court?
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about appointments of members of the Supreme Court and of judges of lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointments. In this proposal, we would like to establish a new office, a sort of a board composed of seven members, called the Judicial and Bar Council. And while the President will still appoint the members of the judiciary, he will be limited to the recommendees of this Council.
MR. CONCEPCION: That is correct.
MR. RODRIGO: And the Council will, whenever there is a vacancy, recommend three.
MR. CONCEPCION: At least three for every vacancy.
MR. RODRIGO: And the President cannot appoint anybody outside of the three recommendees.
MR. CONCEPCION: Nomination by the Council would be one of the qualifications for appointment.
MR. RODRIGO: Suppose the President does not want to appoint any of the three, will the Council be asked to submit another list?
MR. CONCEPCION: In other words, it is just the same as saying the President is not willing to comply with the Constitution
MR. RODRIGO: No, he is willing to comply, but he does not want to appoint any of the three.
MR. CONCEPCION: That is it. The Constitution requires that the nominee be included in the list of the Council.
MR. RODRIGO: No. That is what I want to know. The Council submits three nominees, but the President does not want to appoint any of them. Can he ask the Council to submit another list of three nominees?
MR. CONCEPCION: Yes, definitely.
MR. RODRIGO: And if he does not want these three new nominees, the Council could still submit another three?
MR. CONCEPCION: Yes. I understand that there is also a proposal requiring the filling of vacancies within a specified period.
MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four of them who are the regular members.
MR. CONCEPCION: Yes, that is right.
MR. RODRIGO: So, majority of the members of the Council are appointees of the President.
MR. CONCEPCION: That is right.
MR. RODRIGO: Can the members of the Council be reappointed?
MR. CONCEPCION: They can be reappointed.
MR. RODRIGO: Yes, they can be reappointed, because the tenure of office is staggered — one is appointed for four years, the others are for three years, two and one.
MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.
MR. RODRIGO: So, the member who is appointed for a one-year term can be reappointed for a three- or four-year term. There is no limitation on reappointment?
MR. CONCEPCION: That is right.
MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary provides:
The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court.
MR. CONCEPCION: Yes.
MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or supplement the rules concerning the protection and enforcement of constitutional rights, pleading, etc. — it must have the advice and concurrence of the Supreme Court.
MR. CONCEPCION: That is correct.
MR. RODRIGO: This renders the job of the Assembly inutile because it is absolutely dependent on the Supreme Court. It cannot initiate anything; it has to solicit first the advice and concurrence of the Supreme Court.
MR. CONCEPCION: The President is not the Almighty God. He cannot know better than the courts. The courts control internal operation. That is the purpose.
MR. RODRIGO: Why not just remove this power, which is inutile, from the National Assembly?
MR. CONCEPCION: That is the Commission's concern. If it wants to eliminate it, we will not object to it.
MR. RODRIGO: Instead of giving it a power, which is no power at all, we might as well eliminate this.
MR. CONCEPCION: The point is this. We feel that no President can know better than the court what the demands of its internal operations are.
MR. RODRIGO: Yes. I think I made myself clear on that point.
Another point, Mr. Presiding Officer, which we took up in the Committee on the Legislative is that of giving the State or the offended party the power to appeal from a judgment of acquittal in a criminal case. For the benefit of those who are not lawyers in this body, there is the rule at present against double jeopardy, which provides that if an accused is acquitted at any stage of the judicial proceeding, he can no longer be tried. So, if an accused is acquitted in the municipal court, the judgment of acquittal cannot be appealed to the regional court or to the court of appeals.
Section 12, on page 5, states:
An appeal by the State and/or the offended party from a judgment of acquittal may be allowed in 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.
MR. CONCEPCION: That is correct.
MR. RODRIGO: Even if it is not a mere question of law but of appreciation of facts or evidence?
MR. CONCEPCION: If there has been an abuse of discretion, the court has no jurisdiction and, of course, if the court has no jurisdiction, there could be no valid decision. That is it.
MR. RODRIGO: But lack of jurisdiction can be based on a mistake of the appreciation of facts because it says: "review on certiorari on the ground that it is manifestly against the evidence."
MR. CONCEPCION: Yes, it is manifestly against the evidence on record.
MR. RODRIGO: But it says here: "in the discretion of the Supreme Court." I would like to clarify this. Is it only the Supreme Court to which a judgment of acquittal can be appealed? Can a judgment of acquittal of a municipal court be appealed to a regional trial court?
MR. CONCEPCION: When it affects jurisdiction, it goes to the Supreme Court. The power to review cases involving jurisdiction is stated in the Constitution. That is simple — if there is no jurisdiction, there is no authority, and if there is no authority, the decision rendered is null and void.
MR. RODRIGO: So, the offended party may appeal to the Supreme Court. Suppose somebody is acquitted in the municipal court, can the offended party appeal to the regional trial court?
MR. CONCEPCION: I suppose he could not but if he wants to question the jurisdiction, that is another thing. It is not an appeal. I think Commissioner Rodrigo is not speaking of appeal in general.
MR. RODRIGO: By a petition for review on certiorari.
MR. CONCEPCION: It is an appeal based on the allegation that there has been such abuse of discretion that the court which rendered the judgment acted without jurisdiction.
MR. RODRIGO: I go back to my question. Suppose the accused is acquitted in the municipal court and the offended party wants a petition for review on certiorari, can he petition the regional trial court for it or does he have to go to the Supreme Court?
MR. CONCEPCION: I ask Commissioner Padilla, the author of the provision, to answer the Commissioner's question because I do not want to preempt him.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Padilla is recognized.
MR. PADILLA: Mr. Presiding Officer, the provision, as it appears in the committee report, is limited to a petition for review on certiorari to the Supreme Court, subject to the discretion of the Supreme Court. My original proposal referred to the discretion of the appellate court, but the Committee felt that, when the question involves lack or excess of jurisdiction, the petition should be directed or confined to the Supreme Court. I would like to add that the ground is specific and restricted. Besides being discretionary on the part of the Supreme Court, it may dismiss a petition for review on certiorari outright if it has no merits.
In addition, the ground for a petition for review on certiorari is not only if the judgment is manifestly against the evidence but also if it is rendered with grave abuse of discretion. In my original proposal, it was either of these, but the Committee felt that in addition to the judgment of acquittal being manifestly against the evidence, it must also have been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction.
MR. RODRIGO: Let me repeat my question. Suppose an accused is acquitted by the municipal court under this provision by the Committee, can the offended party petition for review on certiorari to the next higher court which is the regional trial court?
MR. PADILLA: No, the provision, as redrafted by the Committee, is clear that this petition for review on certiorari may only be filed with the Supreme Court, which has the discretion to dismiss or to give it due course.
MR. RODRIGO: But in the Vice-President's original proposal, this petition for review on certiorari can be filed in the regional trial court.
MR. PADILLA: To an appellate court.
MR. RODRIGO: Which is better, Mr. Presiding Officer? I am sure the Vice-President's own "baby" is better.
MR. PADILLA: Our own proposals, which we sometimes feel are the best, must yield to the better judgment of the members of the Committee, and I did agree, otherwise, I would have insisted on my original proposal.
MR. RODRIGO: I will propound the question to the sponsor now.
There are thousands of criminal cases all over the Philippines, in the municipal, city, and regional trial courts. If all the appeals from judgment of acquittals by the offended party or the State be in the discretion of the Supreme Court, does not the sponsor believe the Supreme Court will be swamped by an avalanche of petitions for review on certiorari?
MR. CONCEPCION: Only God can tell and answer the Commissioner's question whether it will be swamped by petitions for review on certiorari or not.
MR. RODRIGO: Yes.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Rodrigo's 15-minute period is over.
MR. RODRIGO: Thank you, Mr. Presiding Officer.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: I ask that Commissioner Bengzon be recognized.
THE PRESIDING OFFICER (Mr. Azcuna): Commissioner Bengzon is recognized.
MR. BENGZON: May I invite the sponsor's attention to page 5 of the committee report, Mr. Presiding Officer, but not of the draft Article, wherein it is stated that two sections are recommended to be included in the Transitory Provisions.
My question is: Is it not that the function of the Supreme Court in providing for a systematic plan to expedite the decision or resolution of cases or matters filed with the courts or the lower courts is something continuing?
MR. CONCEPCION: Yes, that is correct.
MR. BENGZON: So, why do we not include this section in the Article on the Judiciary?
MR. CONCEPCION: Again, the answer is simple. Not all courts have the same problems, and one court may find a method more suitable than that which would be suitable in other regions. There are regions in the Philippines, for instance, where most of the municipalities are situated in the seacoasts and transportation is rather difficult. In highly urbanized areas, it would not be so difficult because the executive judge and, perhaps, even the judges themselves can get together with the justice/s of the Supreme Court and discuss the problem.
My original thought was this, if the Commissioner may allow me to explain.. There are at present 1,700 judges out of 2,200 positions for judges. If each judge were required to decide one case in addition to his normal number of decisions, we would have 1,700 additional cases disposed of apart from those filed after the adoption of this Constitution. If we multiply 1,700 by 12 months, that would be quite a big number. That is how I see it in Manila. I do not know how it will work in the provinces, especially in Palawan. I was assigned there as a judge, but I have not been to that place since 1940. It was difficult to go from one place to another, for instance, from Puerto Princesa to Brooke's Point which is closest to Java or perhaps Sabah. There are problems of communications, court facilities, and libraries. So, I would prefer that the Supreme Court devise ways and means by consulting local judges with the assistance of the Judicial Administrator to unclog the dockets.
MR. BENGZON: Mr. Presiding Officer, what I am referring to is that since this is a continuing work, the Supreme Court will always have to find ways and means to expedite decisions because of varied reasons. My question is: Should we not make this section a part of the regular Article on the Judiciary instead of putting it in the Transitory Provisions?
MR. CONCEPCION: I do not think the members of the Committee would object to that.
MR. BENGZON: My next question is on the cases heard by a division. On page 2, lines 1 to 3 of the proposed Article on the Judiciary say:
Cases heard by a division shall be decided with the concurrence of a majority of the members who actually participated when the case was submitted for decision.
MR. CONCEPCION: That is right.
MR. BENGZON: Suppose there are five members in a division, if three of them, which constitute a quorum, actually participated in the deliberation of the case, a concurrence of the majority of the three, which is two members, would decide the case for the entire court?
MR. CONCEPCION: That is right. That is also part of the attempt to have the Supreme Court clear the docket. If one judge of a municipal court or one regional judge can declare a law unconstitutional, why can two justices of the Supreme Court not? That is the philosophy, Mr. Presiding Officer.
MR. BENGZON: I am still on page 2, line 30. What was the basic reason of the Committee for its decision on a term of four years for the regular members of the Judicial and Bar Council?
MR. CONCEPCION: One might say it was done at random or because there would be four members to be appointed by the President. Actually, the Committee felt there should be a renewal or change of membership from time to time. That is why their terms are staggered — to assure certain continuity in the policies, so that at no time would the Council have members who are not posted on the policies of the officers who preceded them.
MR. BENGZON: I am going back to Section 6, lines 22 to 25, page 2. One of the problems the Judicial Administrators or Judicial Superintendents had was every justice of the Supreme Court wanted to put in his two cents' worth with respect to recommendations they would make, so there was a great delay in the supervision of the lower courts.
The question is: When we create this Judicial and Bar Council, which is under the supervision of the Supreme Court, how would we obviate such a happening from being repeated?
MR. CONCEPCION: I will start by saying that the Commissioner's major premise is not exactly correct because it is a generalization of some incidental situations during the Marcos regime.
By the way, our committee report mentions the personalities who appeared before the Committee. They were, among others, the solicitor general who represents the government, Chief Justice Teehankee, former Chief Justice Makasiar and Atty. Belo, a prominent member of the Integrated Bar of the Philippines. The general consensus is that the major problem of the judiciary is political interference, particularly the power of reorganization which is dangerous, unless subject to some limitations.
MR. BENGZON: My last question, Mr. Presiding Officer, is — and this is for the record so that it will be properly entered in our Journal — on page 4, Section 7(6) states: "appoint all officials and employees of the judiciary." The Committee is referring to appointments of sheriffs, clerks of court, bailiffs and all the employees in the judiciary.
MR. CONCEPCION: Yes, that is right.
MR. BENGZON: All these appointments are made by the Supreme Court.
MR. CONCEPCION: By the Supreme Court, yes.
MR. BENGZON: Thank you.
THE PRESIDING OFFICER (Mr. Azcuna): The honorable Floor Leader is recognized.
MR. RAMA: Before we adjourn, I would like to accommodate the request of Commissioner Gascon to file a motion for reconsideration, which has to be filed now otherwise it will be lost according to our Rules.
So, I ask that Commissioner Gascon be recognized, and that the consideration of that motion for reconsideration be deferred for tomorrow or some other day.
THE PRESIDING OFFICER (Mr. Azcuna): The Chair recognizes Commissioner Gascon.
MR. GASCON: Thank you, Mr. Presiding Officer.
Yesterday, we approved on Second Reading Committee Report No. 7, the Article on Amendment or Revision. After seriously considering the statements therein, I would like to file a motion for reconsideration so that I may introduce amendments on Section 2 on initiative which are: to put a period (.) after the word "Constitution" and to delete "nor oftener than once every five years thereafter."
I feel it is awkward to give freedom to the National Assembly as far as proposing amendments to the Constitution is concerned since we do not give the same freedom to the people. So, I would like to file this motion for reconsideration.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Azcuna): The Floor Leader is recognized.
MR. RAMA: I move that we defer consideration of the motion for reconsideration for tomorrow.
THE PRESIDING OFFICER (Mr. Azcuna): Is there any objection? (Silence) The Chair hears none; the motion is approved.
MR. RAMA: Mr. Presiding Officer, I move that we adjourn until tomorrow at nine o'clock in the morning.
THE PRESIDING OFFICER (Mr. Azcuna): Is there any objection? (Silence) The Chair hears none; the session is adjourned until tomorrow at nine o'clock in the morning.
It was 6:48 p.m.
* Appeared after the roll call.
* See Appendix.
** See Appendix.