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Former Chief Justice Concepcion explains Constitutional provision on Judicial Review

July 10, 1986 R.C.C. No. 27

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.

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.

(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.

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.

(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.