Expanding on a previous article that I had posted, in the recent case of ATTY. ANTONIO G. CAÑEDA vs. JUDGE ERIC F. MENCHAVEZ, A.M. No. RTJ-06-2026 (Formerly OCA IPI No. 06-2496-RTJ), March 4, 2009, which involved a heated open-court quarrel and argument between a judge and a lawyer, the Philippine Supreme Court declared Judge ERIC F. MENCHAVEZ, of the Regional Trial Court, Branch 21, Cebu City, LIABLE for “vulgar and unbecoming conduct as a judge” and accordingly imposed on him a fine of P10,000.00 with a WARNING that a repetition of the same or similar infraction will be dealt with more severely.
On the other hand, the complainant Atty. Antonio Caneda was given the ADMONITION that in representing his clients, “he should ever be mindful of the respect due to the court and avoid actions bordering on disrespect”.
The case arose from a complaint filed on April 12, 2006 by Atty. Antonio G. Cañeda against Judge Eric F. Menchavez of the Regional Trial Court, Branch 21, Cebu City, “for violation of Section 6(3), Rule 140 of the Rules of Court in relation with Canons 2.01, 3.01 and 3.03 of the Code of Judicial Conduct for the Philippine Judiciary”.
In one hearing the respondent judge blurted out “never mind mediation, walay hinundan na (it's useless).”
At one point, when the respondent checked on the progress of a related case on appeal, the complainant remarked that it was being delayed because no proper summons (by publication) had been served on the defendants who were residing outside the country. The respondent judge reacted by angrily banging his gavel and shouting, “I said no publication period.” He banged the gavel so hard that it broke, its head flying into the air and almost hitting complainant. The respondent then slammed the table with his hand and then went inside his chambers. After a while, he came back with a holstered handgun and smashed it on the table, as he angrily shouted at complainant, “Unsay gusto nimo? Yawa! Gahig ulo!” (What do you want? Devil! Hardheaded!)
A lawyer, also attending the hearing and who was near the respondent's table, moved for a recess. A member of the respondent's staff then gave him a glass of water. The complainant apologized for causing the temper of the respondent to rise, but the respondent ignored him and called for the next case. At that point, the complainant asked for permission to leave.
The complainant regarded the respondent's act of challenging him inside the courtroom in the presence of many people as an act of impropriety under Section 6(3), Rule 140 of the Rules of Court, in relation with the Code of Judicial Conduct, Canons 2.01, 3.01 and 3.03. The complainant maintained that the conduct of the respondent inside the court not only tarnished the name of the judiciary he represents but constituted an insult to the law profession; that the respondent is not above the law; and that the gun is not an emblem of authority.
Additionally, complainant perceived the respondent to be biased in favor of the plaintiffs inasmuch as the respondent had been convincing him to agree to the plaintiffs’ position.
In his defense, the respondent explained that the complainant, while arguing at the hearing for his client, refused to stop talking even when signaled by the Court to stop. He told complainant that summons by publication was no longer proper because summons by personal service had already been effected on defendants. The complainant simply continued to argue and even became aggressive, belligerent and disrespectful, causing the respondent to flare up and bang his gavel.
The respondent denied that the gavel broke with its head almost hitting the complainant; the gavel is being used up to the present time and the complainant was never in danger of being hit. He simply refused to stop arguing until the atmosphere became so heated that one of the lawyers, Atty. Elias Espinosa, had to move for a recess. Thereupon, the respondent went inside his chambers, drank a glass of water to cool himself off, and reflected on what had just transpired. He sensed he had reason to fear for his life so he decided to equip himself with his licensed firearm and to place it on the table, preparing for the worst. He never pointed nor brandished the firearm at anyone, as it remained in its holster at all times.
The respondent likewise denied that he had smashed the gun on the table as it could fire or otherwise could have been damaged. After he asked complainant “what do you want?” the lawyer apologized for causing him to raise his voice and to blow his top. He ignored the complainant despite the apology and considered the incidents submitted for resolution.
The respondent also denied the allegation of bias, as allegedly shown by the offer of his chambers to the parties for possible amicable settlement talks. He did so because the parties are members of the same family and a settlement would have been the most beneficial solution. If he blew his top at all, he was led to it by the complainant's disrespect and discourtesy to the court. It was only upon seeing the gun that the complainant calmed down, behaved, and apologized to the court. He sincerely believed that under the circumstances, he employed the means necessary to maintain order in the court.
In its submission dated August 25, 2006, the Office of the Court Administrator found substantial evidence to support the conclusion that the respondent was administratively liable for conduct unbecoming a judge. The OCA noted that the respondent admitted the following:
The aggressive, belligerent and disrespectful conduct of the complainant caused him to flare up or to blow his top and bang his gavel on the table; and
He equipped himself with his gun by bringing it outside and placing it on the table, as he asked complainant, “ what do you want?”
With the foregoing admissions, the OCA found credible the complainant's allegations that the respondent uttered such statements as “never mind mediation, walay hinundan na” (it's useless), 'I said no publication period.” “Yawa! Gahig ulo.” (Devil, Hardheaded!) in the course of his altercation with the complainant.
The OCA faulted the respondent for overstepping the norms of propriety demanded of a member of the bench by losing his cool and uttering intemperate language during the hearing. It opined that the belligerent, aggressive and disrespectful language of complainant was no excuse for what he said to the complainant.
The OCA also characterized as highly irresponsible and improper the respondent’s acts of bringing his handgun into the courtroom, placing it on his table, and threateningly asking the complainant, “what do you want?” This reaction was uncalled for as the respondent has ample powers to address any hostile or unfriendly situation in his court.
The OCA recommended that the respondent be made liable for conduct unbecoming a judge and fined in the amount of P5,000.00, with a warning against the commission of the same or a similar infraction in the future.
As previously stated, the Philippine Supreme Court declared Judge ERIC F. MENCHAVEZ, of the Regional Trial Court, Branch 21, Cebu City, LIABLE for “vulgar and unbecoming conduct as a judge” and accordingly imposed on him a fine of P10,000.00 with a WARNING that a repetition of the same or similar infraction will be dealt with more severely. On the other hand, the complainant Atty. Antonio Caneda was given the ADMONITION that in representing his clients, “he should ever be mindful of the respect due to the court and avoid actions bordering on disrespect”.
The Court stated that, thus:
“What appears certain to us is that there were basic disagreements on approaches and issues in the partition case. In the courtroom, a lawyer makes submissions before a judge whose role is to hear and consider the submissions, and subsequently rule on the matter. It is not a situation where two equals, such as the opposing counsels, argue against each other. The respondent apparently had a misplaced concept of what a courtroom situation should ideally be, so that he was effectively arguing with counsel as shown by his clearly contentious stance when he made his ruling. This was the respondent’s first error; he should have coolly ruled and allowed counsel to respond to his ruling, instead of proceeding in a manner that invited further arguments. The complainant, however, also erred since he continued to argue despite the respondent’s ruling. The respondent judge’s response, under this situation, should have been to direct the complainant to wind up his arguments under pain of direct contempt if this warning would be disregarded. Thereafter, he could have declared the complainant in direct contempt if he persisted in his arguments. A direct contempt, of course, is not enforced by a judge’s act of bringing out his weapon and asking counsel the direct question “What do you want?” This confrontational manner – shown usually in the western genre of movies – has no place in our present justice system. There are agents of the law, specifically, officers of the court and the police who can be called upon to implement contempt orders and restore order as needed.”
The Court concluded that shared the OCA's observation that the respondent overreacted in his handling of the situation before his court. Bringing out a gun for everyone present in the court to see, even for purposes of maintaining order and decorum in the court, is inexcusable in the absence of overt acts of physical aggression by a party before the court.
The New Code of Judicial Conduct requires “`judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer,” and their “behavior and conduct x x x must reaffirm the peoples' faith in the integrity of the judiciary”. The respondent violated this rule when, after a show of anger, he brought and openly displayed his gun on his courtroom table while hurling a confrontational question at the offending counsel. While the New Code of Judicial Conduct requires a magistrate to maintain order and decorum in the court, the Code itself sets limits on how a judge should do this.
The Court stressed that Section 6, Canon 6 of the Code provides that judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control.
The Court reiterated that the respondent judge himself should have observed decorum by acting with dignity and courtesy to all those present in the courtroom. This, the respondent judge failed to do. The severity of his violation was not tampered by his allegation that the complainant himself contributed to the events that led to the respondent’s show of temper.
The Court concluded that equanimity and judiciousness should be the constant marks of a dispenser of justice. A judge should always keep his passion guarded. He can never allow it to run loose and overcome his reason. Although respondent judge may attribute his intemperate language to human frailty, his noble position in the bench nevertheless demands from him courteous speech in and out of court. Judges are demanded to be always temperate, patient and courteous both in conduct and in language.”
I am not a pro bono lawyer. See the PAO or IBP chapter near you for free legal aid.
Tuesday, March 31, 2009
Saturday, March 28, 2009
Poverty
In his recent speech entitled “Safeguarding the Poor in an Economic Crisis”, delivered on March 26, 2009 during the 12th National Convention of Lawyers held in Bacolod City, Philippines, Supreme Court Chief Justice Reynato S. Puno stated, inter alia:
“It is therefore obvious that it is difficult to uphold the rule of law in a land where few live in opulence, while the many die in want. In that setting, power will be in the hands of the few. The handful will determine the law, not the multitude. The elite will dictate the rules of life, not the masses. Sovereignty will no longer reside in the people but in a new aristocracy, the aristocracy of the rich whose only power is the purchasing power.”
I wish to quote below important excerpts from that speech.
“Any crisis always throws respect for the rule of law on the table of debate, for, all too often, it is sacrificed for reasons of necessity.”
“I cannot disagree with your analysis that protecting the rule of law in the ongoing economic crisis is a continuing challenge for lawyers, a challenge we cannot bury on the ground of indifference.”
“This right to equality of the poor cannot be overemphasized. Economist David Landes claims that the “gap in wealth and health that separates rich and poor is the greatest single problem and danger confronting the 21st century.” In 2005, the Commission for Africa described the contrast between the world’s wealthy and the poor in Africa as “the greatest scandal of our age.”
“The richer countries, representing just over one fifth of the world’s population, are producing four fifths of the world’s gross national product. The per capita income gap between the richest and the poorest countries has progressively increased over the past 200 years from a ratio of 3:1 to between 30:1 or 50:1.”
“The wealthiest countries also dominate global trade and control the policies of the International Monetary Fund (IMF) and the World Trade Organization (WTO). This inequality of power among nations in laying down the rules of global trade is one of the hot-button issues in global politics. These rules have contributed a lot to the ongoing economic recession devastating poor nations that had no voice in their formulation. These unilateral rules have virtually been forced down their throats for the poor nations have no option except to follow them.”
“Without doubt, these economic development policies brought by globalization and its free market philosophy have not only widened the gap between the rich and the poor. They have also invited the expressions of extreme concern by environmentalists. The fear is that because of this rush for development, the world might be overshooting its ecological threshold.”
“As you are lawyers, my plea to you is to concentrate your study on how inequality in wealth is wrecking the rule of law. More specifically, how poverty will
destroy the democratic republican government we installed in our 1987 Constitution. It is not an exaggeration to state that poverty will result in a person’s loss of autonomy in life.
“It is therefore obvious that it is difficult to uphold the rule of law in a land where few live in opulence, while the many die in want. In that setting, power will be in the hands of the few. The handful will determine the law, not the multitude. The elite will dictate the rules of life, not the masses. Sovereignty will no longer reside in the people but in a new aristocracy, the aristocracy of the rich whose only power is the purchasing power.”
“Look at how poverty has destroyed the legitimatizing effect of our elections. Free, fair and honest elections lie at the heart of a democratic and republican government. But elections cannot be free where too many of the people are poor. They will not really be free to vote. Some of them will just sell out their right to vote. Some will be coerced by their employers or benefactors. For lack of sophistication, some will vote the undeserving.”
“Worse, the rich who are few but strong may desecrate the election process,
because they may not able to resist the temptation of overwhelming power,
for they have the power of the gun and the power of the gold.”
“All this means that too much poverty is a game changer because it can destroy our political freedom; it can desecrate our democracy.”
“We cannot completely eliminate poverty but we must diminish its level and unless we can close the gap between the rich and the few, our democracy will be a farce. Let us remember that the curse of the poor is not their lack of resources; rather, it is the loss of their freedom. If the many will lose their freedom, the few can’t retain theirs.”
“It is therefore obvious that it is difficult to uphold the rule of law in a land where few live in opulence, while the many die in want. In that setting, power will be in the hands of the few. The handful will determine the law, not the multitude. The elite will dictate the rules of life, not the masses. Sovereignty will no longer reside in the people but in a new aristocracy, the aristocracy of the rich whose only power is the purchasing power.”
I wish to quote below important excerpts from that speech.
“Any crisis always throws respect for the rule of law on the table of debate, for, all too often, it is sacrificed for reasons of necessity.”
“I cannot disagree with your analysis that protecting the rule of law in the ongoing economic crisis is a continuing challenge for lawyers, a challenge we cannot bury on the ground of indifference.”
“This right to equality of the poor cannot be overemphasized. Economist David Landes claims that the “gap in wealth and health that separates rich and poor is the greatest single problem and danger confronting the 21st century.” In 2005, the Commission for Africa described the contrast between the world’s wealthy and the poor in Africa as “the greatest scandal of our age.”
“The richer countries, representing just over one fifth of the world’s population, are producing four fifths of the world’s gross national product. The per capita income gap between the richest and the poorest countries has progressively increased over the past 200 years from a ratio of 3:1 to between 30:1 or 50:1.”
“The wealthiest countries also dominate global trade and control the policies of the International Monetary Fund (IMF) and the World Trade Organization (WTO). This inequality of power among nations in laying down the rules of global trade is one of the hot-button issues in global politics. These rules have contributed a lot to the ongoing economic recession devastating poor nations that had no voice in their formulation. These unilateral rules have virtually been forced down their throats for the poor nations have no option except to follow them.”
“Without doubt, these economic development policies brought by globalization and its free market philosophy have not only widened the gap between the rich and the poor. They have also invited the expressions of extreme concern by environmentalists. The fear is that because of this rush for development, the world might be overshooting its ecological threshold.”
“As you are lawyers, my plea to you is to concentrate your study on how inequality in wealth is wrecking the rule of law. More specifically, how poverty will
destroy the democratic republican government we installed in our 1987 Constitution. It is not an exaggeration to state that poverty will result in a person’s loss of autonomy in life.
“It is therefore obvious that it is difficult to uphold the rule of law in a land where few live in opulence, while the many die in want. In that setting, power will be in the hands of the few. The handful will determine the law, not the multitude. The elite will dictate the rules of life, not the masses. Sovereignty will no longer reside in the people but in a new aristocracy, the aristocracy of the rich whose only power is the purchasing power.”
“Look at how poverty has destroyed the legitimatizing effect of our elections. Free, fair and honest elections lie at the heart of a democratic and republican government. But elections cannot be free where too many of the people are poor. They will not really be free to vote. Some of them will just sell out their right to vote. Some will be coerced by their employers or benefactors. For lack of sophistication, some will vote the undeserving.”
“Worse, the rich who are few but strong may desecrate the election process,
because they may not able to resist the temptation of overwhelming power,
for they have the power of the gun and the power of the gold.”
“All this means that too much poverty is a game changer because it can destroy our political freedom; it can desecrate our democracy.”
“We cannot completely eliminate poverty but we must diminish its level and unless we can close the gap between the rich and the few, our democracy will be a farce. Let us remember that the curse of the poor is not their lack of resources; rather, it is the loss of their freedom. If the many will lose their freedom, the few can’t retain theirs.”
Legislating morality
The recent constitutional-law case of WHITE LIGHT CORPORATION, et. al. vs. CITY OF MANILA, et. al., En Banc, G.R. No. 122846, En Banc, G.R. No. 122846, January 30, 2009, was described by the Philippine Supreme Court as a “clash between government power and individual liberty in tandem with the archetypal tension between law and morality”.
The Court declared as UNCONSTITUTIONAL Ordinance No. 7774 of the City of Manila, entitled, “An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila”.
Let me discuss the decision for legal research purposes of the visitors of this blog.
Legislating morality is a recurring penchant of any State in the world. The Philippines -- with its 400-year history in the Spanish convent, so to speak -- is not an exception.
In will be recalled that in City of Manila v. Laguio, Jr., G.R. 118127, 12 April 2005, 455 SCRA 308, the Court nullified a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area, based on “our sacred constitutional rights to liberty, due process and equal protection of law.”
The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or “wash up” rates for such abbreviated stays
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance, which is reproduced in full hereunder:
“SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as “An Ordinance” prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.”
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) with the Regional Trial Court (RTC) of Manila, impleading as defendant, herein respondent City of Manila. MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila. The three companies are components of the Anito Group of Companies which owns and operates several hotels and motels in Metro Manila.
On December 23, 1992, the RTC granted the motion to intervene. The RTC notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court.
The RTC issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.
The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement of the Ordinance.
A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the case involved a purely legal question.
On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void.
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power to regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports.
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.
First, the Court dispensed with the technical issue of the legal sanding of the petitioners (motels).
The requirement of standing is a core component of the judicial system derived directly from the Constitution (Sec. 5, Art. VIII, 1987 Constitution). In this jurisdiction, the extancy of “a direct and personal interest” presents the most obvious cause, as well as the standard test for a petitioner's standing.
The general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.
Citing American cases, the Court recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an ‘injury-in-fact,’ thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests.
In the case at bar, the business interests of the petitioners were injured by the Ordinance. They relied on the patronage of their customers for their continued viability which was threatened by the enforcement of the Ordinance.
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.
In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. Based on the allegations in the instant petition, the Ordinance suffers from overbreadth, for which reason the Court recognized that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a “wash-rate” time frame.
It will be noted that in the 1967 case of Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila, 127 Phil. 306, the Court sustained the constitutionality of a city ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house, which was precisely enacted to minimize certain practices deemed harmful to public morals.
In the 2005 case of City of Manila v. Laguio, Jr., G.R. 118127, 12 April 2005, 455 SCRA 308, the Court nullified a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area, based on “our sacred constitutional rights to liberty, due process and equal protection of law.” The ordinance was “a blanket ban on motels, inns and similar establishments in the Ermita-Malate area”.
In the instant case, “there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted”. At its core, this is another case “about the extent to which the State can intrude into and regulate the lives of its citizens”.
What is the test of a valid ordinance? For an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. (See: City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 268-267).
In the instant case, the Ordinance prohibits two specific and distinct business practices, namely, “wash rate admissions and renting out a room more than twice a day”. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause.
The Court recognized that the apparent goal of the Ordinance is “to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike”, which, by themselves, are “unimpeachable and certainly fall within the ambit of the police power of the State”. But the Court qualified that “the desirability of these ends do not sanctify any and all means for their achievement”. Those means must align with the Constitution.
The primary constitutional question that confronted the Court was one of due process, as guaranteed under Section 1, Article III of the Constitution. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed.
Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.
The judiciary would defer to the legislature unless there is a discrimination against a “discrete and insular” minority or infringement of a “fundamental right.”
Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny later adopted for evaluating classifications based on gender and legitimacy. It has applied in substantive due process cases as well.
Under the rational basis test, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Governmental interest is extensively examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.
Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.
The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel.
Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those “trivial” yet fundamental freedoms – which the people reflexively exercise any day without the impairing awareness of their constitutional consequence – that accurately reflect the degree of liberty enjoyed by the people.
Liberty as guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.
In the case at bar, the primary animus behind the ordinance is “the curtailment of sexual behavior”. The City asserts that the subject establishments “have gained notoriety as venue of ‘prostitution, adultery and fornications’ in Manila since they ‘provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ‘ideal haven for prostitutes and thrill-seekers.’”
Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected will be curtailed as well.
The Court held that “the concept of liberty compels respect for the individual whose claim to privacy and interference demands respect”.
It stated, further: “We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.”
The Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business.
The Court made the following doctrinal pronouncement: “The interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.”
Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. The exercise of police power is “subject to judicial review when life, liberty or property is affected.”
The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition.
The Court stated that the behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect “wash rates” from their clientele by charging their customers a portion of the rent for motel rooms and even apartments.
The Court stressed that Individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. “The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens.” However well¬-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions.
The Court declared as UNCONSTITUTIONAL Ordinance No. 7774 of the City of Manila, entitled, “An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila”.
Let me discuss the decision for legal research purposes of the visitors of this blog.
Legislating morality is a recurring penchant of any State in the world. The Philippines -- with its 400-year history in the Spanish convent, so to speak -- is not an exception.
In will be recalled that in City of Manila v. Laguio, Jr., G.R. 118127, 12 April 2005, 455 SCRA 308, the Court nullified a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area, based on “our sacred constitutional rights to liberty, due process and equal protection of law.”
The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or “wash up” rates for such abbreviated stays
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance, which is reproduced in full hereunder:
“SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as “An Ordinance” prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.”
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) with the Regional Trial Court (RTC) of Manila, impleading as defendant, herein respondent City of Manila. MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila. The three companies are components of the Anito Group of Companies which owns and operates several hotels and motels in Metro Manila.
On December 23, 1992, the RTC granted the motion to intervene. The RTC notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court.
The RTC issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.
The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement of the Ordinance.
A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the case involved a purely legal question.
On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void.
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power to regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports.
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.
First, the Court dispensed with the technical issue of the legal sanding of the petitioners (motels).
The requirement of standing is a core component of the judicial system derived directly from the Constitution (Sec. 5, Art. VIII, 1987 Constitution). In this jurisdiction, the extancy of “a direct and personal interest” presents the most obvious cause, as well as the standard test for a petitioner's standing.
The general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.
Citing American cases, the Court recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an ‘injury-in-fact,’ thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests.
In the case at bar, the business interests of the petitioners were injured by the Ordinance. They relied on the patronage of their customers for their continued viability which was threatened by the enforcement of the Ordinance.
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.
In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. Based on the allegations in the instant petition, the Ordinance suffers from overbreadth, for which reason the Court recognized that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a “wash-rate” time frame.
It will be noted that in the 1967 case of Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila, 127 Phil. 306, the Court sustained the constitutionality of a city ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house, which was precisely enacted to minimize certain practices deemed harmful to public morals.
In the 2005 case of City of Manila v. Laguio, Jr., G.R. 118127, 12 April 2005, 455 SCRA 308, the Court nullified a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area, based on “our sacred constitutional rights to liberty, due process and equal protection of law.” The ordinance was “a blanket ban on motels, inns and similar establishments in the Ermita-Malate area”.
In the instant case, “there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted”. At its core, this is another case “about the extent to which the State can intrude into and regulate the lives of its citizens”.
What is the test of a valid ordinance? For an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. (See: City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 268-267).
In the instant case, the Ordinance prohibits two specific and distinct business practices, namely, “wash rate admissions and renting out a room more than twice a day”. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause.
The Court recognized that the apparent goal of the Ordinance is “to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike”, which, by themselves, are “unimpeachable and certainly fall within the ambit of the police power of the State”. But the Court qualified that “the desirability of these ends do not sanctify any and all means for their achievement”. Those means must align with the Constitution.
The primary constitutional question that confronted the Court was one of due process, as guaranteed under Section 1, Article III of the Constitution. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed.
Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.
The judiciary would defer to the legislature unless there is a discrimination against a “discrete and insular” minority or infringement of a “fundamental right.”
Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny later adopted for evaluating classifications based on gender and legitimacy. It has applied in substantive due process cases as well.
Under the rational basis test, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Governmental interest is extensively examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.
Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.
The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel.
Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those “trivial” yet fundamental freedoms – which the people reflexively exercise any day without the impairing awareness of their constitutional consequence – that accurately reflect the degree of liberty enjoyed by the people.
Liberty as guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.
In the case at bar, the primary animus behind the ordinance is “the curtailment of sexual behavior”. The City asserts that the subject establishments “have gained notoriety as venue of ‘prostitution, adultery and fornications’ in Manila since they ‘provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ‘ideal haven for prostitutes and thrill-seekers.’”
Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected will be curtailed as well.
The Court held that “the concept of liberty compels respect for the individual whose claim to privacy and interference demands respect”.
It stated, further: “We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.”
The Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business.
The Court made the following doctrinal pronouncement: “The interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.”
Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. The exercise of police power is “subject to judicial review when life, liberty or property is affected.”
The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition.
The Court stated that the behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect “wash rates” from their clientele by charging their customers a portion of the rent for motel rooms and even apartments.
The Court stressed that Individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. “The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens.” However well¬-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions.
Judicial immunity
Once in a while, the Philippine Supreme Court is constrained to repeat the old doctrine that “an administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty”.
This is the concept of JUDICIAL IMMUNITY.
This is so because of the dilatory and unfair tendency of litigants and lawyers to file administrative cases against trial and appellate judges whose decisions they do not agree with, notwithstanding the pendency or availability of regular judicial remedies in the ordinary course of the litigation as contained in the Rules of Court.
In the case of GENARO SANTIAGO III vs. JUSTICE JUAN Q. ENRIQUEZ, JR., En Banc, A.M. No. CA-09-47-J [Formerly A.M. OCA IPI No. 08-121-CA-J], February 13, 2009, which I wish to discuss below for purposes of legal research of the visitors o this blog, the Supreme Court held that the remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty…
The Court has to be shown acts or conduct of the judge clearly indicative of the arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial. Thus, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice, not every error or mistake that a judge commits in the performance of his duties renders him liable…The failure to interpret the law or to properly appreciate the evidence presented does not necessarily render a judge administratively liable. (Italics in the original; underscoring supplied)
The principle of “judicial immunity” insulates judges, and even Justices of superior courts, from being held to account criminally, civilly or administratively for an erroneous decision rendered in good faith. To hold otherwise would render judicial office untenable. No one called upon to try the facts or interpret the law in the process of administering justice could be infallible in his judgment. It added:
A judicial officer cannot be called to account in a civil action for acts done by him in the exercise of his judicial function, however erroneous. In the words of Alzua and Arnalot v. Johnson, “ … it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary. This principle is of universal application and applies to all grades of judicial officers from the highest judge of the nation and to the lowest officer who sits as a court. (Italics in the original; emphasis and underscoring supplied)
Stressing that appellate courts are collegial in nature, the Supreme Court emphasized that the filing of charges against a single member of a division of the appellate court is inappropriate because the questioned decision was not rendered by the respondent in his individual capacity and that it was a product of the consultations and deliberations by the division.
This is the concept of JUDICIAL IMMUNITY.
This is so because of the dilatory and unfair tendency of litigants and lawyers to file administrative cases against trial and appellate judges whose decisions they do not agree with, notwithstanding the pendency or availability of regular judicial remedies in the ordinary course of the litigation as contained in the Rules of Court.
In the case of GENARO SANTIAGO III vs. JUSTICE JUAN Q. ENRIQUEZ, JR., En Banc, A.M. No. CA-09-47-J [Formerly A.M. OCA IPI No. 08-121-CA-J], February 13, 2009, which I wish to discuss below for purposes of legal research of the visitors o this blog, the Supreme Court held that the remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty…
The Court has to be shown acts or conduct of the judge clearly indicative of the arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial. Thus, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice, not every error or mistake that a judge commits in the performance of his duties renders him liable…The failure to interpret the law or to properly appreciate the evidence presented does not necessarily render a judge administratively liable. (Italics in the original; underscoring supplied)
The principle of “judicial immunity” insulates judges, and even Justices of superior courts, from being held to account criminally, civilly or administratively for an erroneous decision rendered in good faith. To hold otherwise would render judicial office untenable. No one called upon to try the facts or interpret the law in the process of administering justice could be infallible in his judgment. It added:
A judicial officer cannot be called to account in a civil action for acts done by him in the exercise of his judicial function, however erroneous. In the words of Alzua and Arnalot v. Johnson, “ … it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary. This principle is of universal application and applies to all grades of judicial officers from the highest judge of the nation and to the lowest officer who sits as a court. (Italics in the original; emphasis and underscoring supplied)
Stressing that appellate courts are collegial in nature, the Supreme Court emphasized that the filing of charges against a single member of a division of the appellate court is inappropriate because the questioned decision was not rendered by the respondent in his individual capacity and that it was a product of the consultations and deliberations by the division.
Tuesday, March 24, 2009
Gross inefficiency
It is not rare to find a situation in the Philippines where a retiring judge leaves the judicial service without acting on his pending cases. This is detrimental to the rule of law and the administration of justice in the country. Regular judicial audits conducted by Supreme Court auditors have exposed this unfortunate situation.
In the recent case of RE: JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT, BRANCH 6, TACLOBAN CITY, EN BANC, A.M. No. RTJ-09-2171 (Formerly A.M. No. 09-94-RTC), March 17, 2009, the Supreme Court found retired JUDGE SANTOS T. GIL GUILTY of gross inefficiency for his undue delay in rendering decisions or orders and was FINED in the amount of Fifty Thousand Pesos (P50,000.00), to be deducted from his retirement benefits.
A judicial audit was conducted in the Regional Trial Court (RTC), Branch 6, of Tacloban City on November 28 and 29, 2008. Judge Santos T. Gil was Presiding Judge of the court until his retirement on August 20, 2008.
In its Report dated February 9, 2009, the Office of the Court Administrator (OCA) found that prior to his retirement, Judge Gil —
1. Failed to take action on sixteen (16) criminal cases;
3. Failed to resolve the pending incidents/motions in four (4) criminal cases;
4. Failed to decide thirty-four (34) criminal cases;
5. Failed to promulgate the decision in five (5) criminal cases.
The Office of the Court Administrator (OCA) disclosed that the audit team had discovered that:
1. several warrants of arrest were in the possession of the Process Server and were not properly indorsed to the concerned police officers;
2. some certificates of detention were signed by Atty. Edna V. Maceda, Branch Clerk of Court;
3. there were no orders directing the payment of postponement fees in civil cases;
4. some motions were not properly received (without stamp of the date of receipt);
5. Pre-Trial Orders (PTOs) were signed only by the judge;
5. records of cases jointly tried were incomplete;
6. there were typographical errors found in several orders;
7. the January to June Semestral Docket Inventory for 2008 manifested wrong case numbers;
8. the case records were not paginated; and
9. there were also firearms, ammunition and illegal drugs, and evidence in decided criminal cases that were still in the possession of the court.
Judge Gil was given previously 120 days prior to his retirement to decide and resolve the cases submitted for decision, during which period, he was directed to desist from hearing cases. Despite the ample time given, he failed to decide all cases submitted for decision. In fact, upon his retirement, he left unresolved thirty-four (34) criminal cases and four (4) civil cases submitted for decision. Apart from this, Judge Gil also failed to take appropriate action for a considerable length of time in a total of ninety-two (92) criminal cases and seven (7) civil cases; resolve pending motions in nine (9) cases; and promulgate five (5) decisions.
Glaringly, two of the pending criminal cases (Criminal Cases Nos. 93-01-38 and 93-01-39) were submitted for decision way back in 2002 while one civil case (Civil Case No. 92-02-36) was deemed submitted for decision in 1999. In other words, these two criminal cases have been pending resolution for six years, and the civil case for seven years, at the time Judge Gil retired from the service. When viewed in light of the constitutional prescription that lower courts were given only a period of 90 days within which to decide or resolve a case from the time it was submitted for decision, this delay clearly illustrated the gravity of Judge Gil’s incompetence, according to the Supreme Court.
The Court added that a judge must manage his court with a view to the prompt and convenient disposition of its business. Although the Court, in its pursuit of speedy dispensation of justice, was not unmindful of circumstances that may delay the disposition of the cases assigned to judges and its sympathetic to seasonably filed requests for extensions of time to decide cases, however, verification with the Docket Division of the OCA disclosed no such requests for extension of time to decide the cases submitted for decision or any pending motions in the reported cases.
The Court emphasized that failure to decide cases within the reglementary period, without strong and justifiable reason, constituted gross inefficiency warranting the imposition of an administrative sanction on the defaulting judge. The penalty imposed varied in each case; from fine, suspension, suspension and fine, and even dismissal, depending chiefly on the number of cases left undecided within the reglementary period, and other factors, such as the damage suffered by the parties as a result of the delay, the health and age of the judge. In view of Judge Gil’s retirement on August 20, 2008, the only penalty that the Court could impose against him was a fine.
The Court stated that Judge Gil’s actuations indicated an indifference to the plight of litigants and a blatant disregard of their right to speedy disposition of their cases. Hence, the Court determined that the penalty of P50,000.00 was commensurate to his infractions particularly because it was not the first time that Judge Gil had been sanctioned by the Court for undue delay in resolving cases. Judge Gil had been previously fined P5,000.00 for undue delay in resolving a land registration case. In another case, Judge Gil was also fined P2,000.00 for not complying promptly with an order of this Court to conduct an investigation on an administrative complaint against a lawyer. In both cases, the Court sternly warned Judge Gil that repetition of the same or similar offense would be dealt with more severely.
In the recent case of RE: JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT, BRANCH 6, TACLOBAN CITY, EN BANC, A.M. No. RTJ-09-2171 (Formerly A.M. No. 09-94-RTC), March 17, 2009, the Supreme Court found retired JUDGE SANTOS T. GIL GUILTY of gross inefficiency for his undue delay in rendering decisions or orders and was FINED in the amount of Fifty Thousand Pesos (P50,000.00), to be deducted from his retirement benefits.
A judicial audit was conducted in the Regional Trial Court (RTC), Branch 6, of Tacloban City on November 28 and 29, 2008. Judge Santos T. Gil was Presiding Judge of the court until his retirement on August 20, 2008.
In its Report dated February 9, 2009, the Office of the Court Administrator (OCA) found that prior to his retirement, Judge Gil —
1. Failed to take action on sixteen (16) criminal cases;
3. Failed to resolve the pending incidents/motions in four (4) criminal cases;
4. Failed to decide thirty-four (34) criminal cases;
5. Failed to promulgate the decision in five (5) criminal cases.
The Office of the Court Administrator (OCA) disclosed that the audit team had discovered that:
1. several warrants of arrest were in the possession of the Process Server and were not properly indorsed to the concerned police officers;
2. some certificates of detention were signed by Atty. Edna V. Maceda, Branch Clerk of Court;
3. there were no orders directing the payment of postponement fees in civil cases;
4. some motions were not properly received (without stamp of the date of receipt);
5. Pre-Trial Orders (PTOs) were signed only by the judge;
5. records of cases jointly tried were incomplete;
6. there were typographical errors found in several orders;
7. the January to June Semestral Docket Inventory for 2008 manifested wrong case numbers;
8. the case records were not paginated; and
9. there were also firearms, ammunition and illegal drugs, and evidence in decided criminal cases that were still in the possession of the court.
Judge Gil was given previously 120 days prior to his retirement to decide and resolve the cases submitted for decision, during which period, he was directed to desist from hearing cases. Despite the ample time given, he failed to decide all cases submitted for decision. In fact, upon his retirement, he left unresolved thirty-four (34) criminal cases and four (4) civil cases submitted for decision. Apart from this, Judge Gil also failed to take appropriate action for a considerable length of time in a total of ninety-two (92) criminal cases and seven (7) civil cases; resolve pending motions in nine (9) cases; and promulgate five (5) decisions.
Glaringly, two of the pending criminal cases (Criminal Cases Nos. 93-01-38 and 93-01-39) were submitted for decision way back in 2002 while one civil case (Civil Case No. 92-02-36) was deemed submitted for decision in 1999. In other words, these two criminal cases have been pending resolution for six years, and the civil case for seven years, at the time Judge Gil retired from the service. When viewed in light of the constitutional prescription that lower courts were given only a period of 90 days within which to decide or resolve a case from the time it was submitted for decision, this delay clearly illustrated the gravity of Judge Gil’s incompetence, according to the Supreme Court.
The Court added that a judge must manage his court with a view to the prompt and convenient disposition of its business. Although the Court, in its pursuit of speedy dispensation of justice, was not unmindful of circumstances that may delay the disposition of the cases assigned to judges and its sympathetic to seasonably filed requests for extensions of time to decide cases, however, verification with the Docket Division of the OCA disclosed no such requests for extension of time to decide the cases submitted for decision or any pending motions in the reported cases.
The Court emphasized that failure to decide cases within the reglementary period, without strong and justifiable reason, constituted gross inefficiency warranting the imposition of an administrative sanction on the defaulting judge. The penalty imposed varied in each case; from fine, suspension, suspension and fine, and even dismissal, depending chiefly on the number of cases left undecided within the reglementary period, and other factors, such as the damage suffered by the parties as a result of the delay, the health and age of the judge. In view of Judge Gil’s retirement on August 20, 2008, the only penalty that the Court could impose against him was a fine.
The Court stated that Judge Gil’s actuations indicated an indifference to the plight of litigants and a blatant disregard of their right to speedy disposition of their cases. Hence, the Court determined that the penalty of P50,000.00 was commensurate to his infractions particularly because it was not the first time that Judge Gil had been sanctioned by the Court for undue delay in resolving cases. Judge Gil had been previously fined P5,000.00 for undue delay in resolving a land registration case. In another case, Judge Gil was also fined P2,000.00 for not complying promptly with an order of this Court to conduct an investigation on an administrative complaint against a lawyer. In both cases, the Court sternly warned Judge Gil that repetition of the same or similar offense would be dealt with more severely.
Monday, March 23, 2009
Thieves in the courts
Unknown to many Filipinos, millions of pesos are being lost yearly by reason of the dishonesty of the field-level clerks of court and other finance personnel of the Philippine Supreme Court nationwide. To its credit, the Court has been very vigilant in unraveling such anomalies and in punishing its guilty personnel. But the irregularities, sad to say, continue to this very day.
Let me share a recent example.
In the recent case of OFFICE OF THE COURT ADMINISTRATOR vs. JINGKEY NOLASCO, Clerk of Court, Municipal Trial Court, San Jose, Antique, EN BANC, A.M. No. P-06-2148, March 4, 2009 (per curiam), the Philippine Supreme Court found the respondent GUILTY of gross dishonesty and grave misconduct and DISMISSED her from the service with forfeiture of retirement and all other benefits, and with prejudice to reemployment in any branch, agency or instrumentality of the government, including government-owned and controlled corporations. The respondent was directed to RESTITUTE the amount of P625,175.29 representing the shortages in her collections. The Court ordered the Office of the Court Administrator to INITIATE the filing of criminal charges against respondent and retired Judge Ma. Monina S. Misajon before the appropriate court or body.
This administrative matter arose from an examination conducted by the Commission on Audit (COA) on the cash and accounts of respondent Jingkey B. Nolasco, Clerk of Court II, Municipal Trial Court (MTC)-San Jose, Antique.
After a series of audits and investigations, the Court found that respondent Nolasco administratively liable for the shortages which she incurred in her cash collections. The respondent failed to immediately deposit the various funds collected with the authorized government depository bank, in violation of pertinent court circulars which direct the same. She admitted that she had misappropriated the money for her personal use without specifically explaining the reasons for her actions, and has yet to restitute the total amount of P625,175.29.
The Court stated that as clerk of court, respondent Nolasco was duty-bound to use reasonable skill and diligence in the performance of her duties. She was an accountable officer entrusted with the responsibility of collecting and depositing money belonging to the court. She obviously failed to fulfill this responsibility and even converted the court’s funds for her personal use. Her failure to account for the money entrusted to her, and to adequately explain and present evidence thereon, constitutes gross dishonesty, grave misconduct and even malversation of public funds which this Court will never countenance.
Clerks of Court must be individuals of competence, honesty and probity, charged as they are with safeguarding the integrity of the court and its proceedings. They perform a delicate function as designated custodians of the court’s funds, revenues, records, properties and premises. As such, they are responsible for ensuring that the court’s funds are promptly deposited with an authorized government depositary bank. They are thus liable for any loss, shortage, destruction or impairment of such funds and property.
The Court added that, indeed, no position demands greater moral righteousness and uprightness from the occupant than does the judicial office. The safekeeping of funds and collections is essential to the goal of an orderly administration of justice, and no protestation of good faith can override the mandatory nature of the circulars designed to promote full accountability for government funds. The failure to remit the funds in due time amounts to dishonesty and grave misconduct, which the Court cannot tolerate for they diminish the people’s faith in the judiciary. The act of misappropriating judiciary funds constitutes dishonesty and grave misconduct which are punishable by dismissal from the service, even if committed for the first time.
As for Judge Misajon, the Court stated that if found no reason to depart from the findings of the investigators and auditors that she instructed Nolasco to withdraw unauthorized amounts from the FFA so that she could borrow the same. By simply comparing the deposit slip pertaining to the first withdrawal with her sample handwriting, this Court is left without any doubt that the penmanship on the deposit slip is in fact Judge Misajon’s, as asserted by Nolasco. Judge Misajon even had the temerity to point to one of her other staff members as having filled up the deposit slip, which said staff member denied. It is thus evident that Judge Misajon was not forthright about the matter and did not tell the truth during her testimony before the investigating judge.
The Court stressed that the function of evaluating the credibility of witnesses in administrative cases is primarily lodged in the investigating judge. The rule which concedes due respect, and even finality, to the assessment of credibility of witnesses by trial judges in civil and criminal cases where preponderance of evidence and proof beyond reasonable doubt, respectively, are required, applies a fortiori in administrative cases where the quantum of proof required is only substantial evidence. The investigating judge is in a better position to pass judgment on the credibility of witnesses, having personally heard them when they testified and observed their deportment and manner of testifying. In the case of Judge Misajon, we simply find no reason to disregard this rule.
It added that Judge Misajon had the responsibility of seeing to it that Nolasco, as clerk of court, performed her duties and complied with circulars issued by the Supreme Court on the handling and safekeeping of court funds. Had she supervised and managed her court in the manner that was expected of her as a judge, she could have discovered earlier that Nolasco was misappropriating funds and prevented the misappropriated amount from ballooning to such a large sum. It is even probable that Nolasco was emboldened to convert court collections for her personal use, as Judge Misajon herself dipped her hands into the court funds. By “borrowing” money from the collections of the court, she knowingly made the clerk of court violate circulars on the proper administration of court funds and, in the process, became complicit in Nolasco’s own wrongdoing.
It will be noted that Judge Misajon compulsorily retired from the service without any formal administrative charges brought against her. Despite the clear misconduct which she committed, the Court could not impose administrative sanctions against her, since she no longer falls within the administrative supervision of the Court. The Court, however, was not without recourse. As pointed out by the OCA, her act of inducing or persuading respondent Nolasco to violate duly promulgated rules on the administration of court funds may well constitute a violation of Section 3(a), Republic Act No. 3019. Thus, a criminal case may be initiated against Judge Misajon on the basis of the findings in this administrative matter.
The Court declared that time and again, it had stressed that those charged with the dispensation of justice – from the presiding judge to the lowliest clerk – are circumscribed with a heavy burden of responsibility. Their conduct at all times must not only be characterized by propriety and decorum but, above all else, must be beyond suspicion. Every employee of the judiciary should be an example of integrity, uprightness and honesty. Sadly, respondent Nolasco and Judge Misajon failed to live up to these stringent standards.
Let me share a recent example.
In the recent case of OFFICE OF THE COURT ADMINISTRATOR vs. JINGKEY NOLASCO, Clerk of Court, Municipal Trial Court, San Jose, Antique, EN BANC, A.M. No. P-06-2148, March 4, 2009 (per curiam), the Philippine Supreme Court found the respondent GUILTY of gross dishonesty and grave misconduct and DISMISSED her from the service with forfeiture of retirement and all other benefits, and with prejudice to reemployment in any branch, agency or instrumentality of the government, including government-owned and controlled corporations. The respondent was directed to RESTITUTE the amount of P625,175.29 representing the shortages in her collections. The Court ordered the Office of the Court Administrator to INITIATE the filing of criminal charges against respondent and retired Judge Ma. Monina S. Misajon before the appropriate court or body.
This administrative matter arose from an examination conducted by the Commission on Audit (COA) on the cash and accounts of respondent Jingkey B. Nolasco, Clerk of Court II, Municipal Trial Court (MTC)-San Jose, Antique.
After a series of audits and investigations, the Court found that respondent Nolasco administratively liable for the shortages which she incurred in her cash collections. The respondent failed to immediately deposit the various funds collected with the authorized government depository bank, in violation of pertinent court circulars which direct the same. She admitted that she had misappropriated the money for her personal use without specifically explaining the reasons for her actions, and has yet to restitute the total amount of P625,175.29.
The Court stated that as clerk of court, respondent Nolasco was duty-bound to use reasonable skill and diligence in the performance of her duties. She was an accountable officer entrusted with the responsibility of collecting and depositing money belonging to the court. She obviously failed to fulfill this responsibility and even converted the court’s funds for her personal use. Her failure to account for the money entrusted to her, and to adequately explain and present evidence thereon, constitutes gross dishonesty, grave misconduct and even malversation of public funds which this Court will never countenance.
Clerks of Court must be individuals of competence, honesty and probity, charged as they are with safeguarding the integrity of the court and its proceedings. They perform a delicate function as designated custodians of the court’s funds, revenues, records, properties and premises. As such, they are responsible for ensuring that the court’s funds are promptly deposited with an authorized government depositary bank. They are thus liable for any loss, shortage, destruction or impairment of such funds and property.
The Court added that, indeed, no position demands greater moral righteousness and uprightness from the occupant than does the judicial office. The safekeeping of funds and collections is essential to the goal of an orderly administration of justice, and no protestation of good faith can override the mandatory nature of the circulars designed to promote full accountability for government funds. The failure to remit the funds in due time amounts to dishonesty and grave misconduct, which the Court cannot tolerate for they diminish the people’s faith in the judiciary. The act of misappropriating judiciary funds constitutes dishonesty and grave misconduct which are punishable by dismissal from the service, even if committed for the first time.
As for Judge Misajon, the Court stated that if found no reason to depart from the findings of the investigators and auditors that she instructed Nolasco to withdraw unauthorized amounts from the FFA so that she could borrow the same. By simply comparing the deposit slip pertaining to the first withdrawal with her sample handwriting, this Court is left without any doubt that the penmanship on the deposit slip is in fact Judge Misajon’s, as asserted by Nolasco. Judge Misajon even had the temerity to point to one of her other staff members as having filled up the deposit slip, which said staff member denied. It is thus evident that Judge Misajon was not forthright about the matter and did not tell the truth during her testimony before the investigating judge.
The Court stressed that the function of evaluating the credibility of witnesses in administrative cases is primarily lodged in the investigating judge. The rule which concedes due respect, and even finality, to the assessment of credibility of witnesses by trial judges in civil and criminal cases where preponderance of evidence and proof beyond reasonable doubt, respectively, are required, applies a fortiori in administrative cases where the quantum of proof required is only substantial evidence. The investigating judge is in a better position to pass judgment on the credibility of witnesses, having personally heard them when they testified and observed their deportment and manner of testifying. In the case of Judge Misajon, we simply find no reason to disregard this rule.
It added that Judge Misajon had the responsibility of seeing to it that Nolasco, as clerk of court, performed her duties and complied with circulars issued by the Supreme Court on the handling and safekeeping of court funds. Had she supervised and managed her court in the manner that was expected of her as a judge, she could have discovered earlier that Nolasco was misappropriating funds and prevented the misappropriated amount from ballooning to such a large sum. It is even probable that Nolasco was emboldened to convert court collections for her personal use, as Judge Misajon herself dipped her hands into the court funds. By “borrowing” money from the collections of the court, she knowingly made the clerk of court violate circulars on the proper administration of court funds and, in the process, became complicit in Nolasco’s own wrongdoing.
It will be noted that Judge Misajon compulsorily retired from the service without any formal administrative charges brought against her. Despite the clear misconduct which she committed, the Court could not impose administrative sanctions against her, since she no longer falls within the administrative supervision of the Court. The Court, however, was not without recourse. As pointed out by the OCA, her act of inducing or persuading respondent Nolasco to violate duly promulgated rules on the administration of court funds may well constitute a violation of Section 3(a), Republic Act No. 3019. Thus, a criminal case may be initiated against Judge Misajon on the basis of the findings in this administrative matter.
The Court declared that time and again, it had stressed that those charged with the dispensation of justice – from the presiding judge to the lowliest clerk – are circumscribed with a heavy burden of responsibility. Their conduct at all times must not only be characterized by propriety and decorum but, above all else, must be beyond suspicion. Every employee of the judiciary should be an example of integrity, uprightness and honesty. Sadly, respondent Nolasco and Judge Misajon failed to live up to these stringent standards.
Saturday, March 21, 2009
Voluntary bar associations
LAS PINAS CITY BAR ASSOCIATION (LPBA), INC.
Unit 15, Star Arcade, C.V. Starr Avenue
Philamlife Village, Las Pinas City 1743, Philippines
Tel/Fax: 8725443, 8742539
Email: lcmlaw@gmail.com,
Website: http://laspinasbar.multiply.com
March 18, 2009
Fax
Hon. Reynato Puno
Chief Justice
Supreme Court
Manila
Re : Voluntary Bar Associations
Mabuhay:
May we respectfully suggest that, in all major issuances and new policies or activities of the Supreme Court which may affect the Bar, the VOLUNTARY BAR ASSOCIATIONS nationwide be consulted, in addition to the usual consultation that the Supreme Court makes with the mandatory Integrated Bar of the Philippines (IBP).
The thought incidentally to came to mind while reading just now the recent issuance of the Supreme Court in Bar Matter No. 2012, February 10, 2009 (re: mandatory legal aid service for practising lawyers), which limits only to the IBP the matter of consultations on the implementing rules and regulations thereof.
Have a blessed and liberated day. Thank you.
Sincerely,
Atty. Manuel J. Laserna Jr.
Founder and Board Consultant
Unit 15, Star Arcade, C.V. Starr Avenue
Philamlife Village, Las Pinas City 1743, Philippines
Tel/Fax: 8725443, 8742539
Email: lcmlaw@gmail.com,
Website: http://laspinasbar.multiply.com
March 18, 2009
Fax
Hon. Reynato Puno
Chief Justice
Supreme Court
Manila
Re : Voluntary Bar Associations
Mabuhay:
May we respectfully suggest that, in all major issuances and new policies or activities of the Supreme Court which may affect the Bar, the VOLUNTARY BAR ASSOCIATIONS nationwide be consulted, in addition to the usual consultation that the Supreme Court makes with the mandatory Integrated Bar of the Philippines (IBP).
The thought incidentally to came to mind while reading just now the recent issuance of the Supreme Court in Bar Matter No. 2012, February 10, 2009 (re: mandatory legal aid service for practising lawyers), which limits only to the IBP the matter of consultations on the implementing rules and regulations thereof.
Have a blessed and liberated day. Thank you.
Sincerely,
Atty. Manuel J. Laserna Jr.
Founder and Board Consultant
Las Pinas Bar
LAS PINAS CITY BAR ASSOCIATION (LPAB), INC.
Email : clavelaw@yahoo.com; melvynlagasca@yahoo.com.
Website : http://laspinasbar.multiply.com
Tel/Fax No. 911-02281 ; 0918-90152334; 8007594
March 20, 2009
For Circulation To All Concern
ANNOUNCEMENT
The New Officers and Directors of the Las Piñas City Bar Association (LPBA), Inc. for the term - March 2009 to March 2010 , elected during the Regular Monthly Board Meeting held on March 18, 2009 (3rd Wednesday) at 6:00 PM at the Cecille’s Restaurant , BF Resort Village, Las Piñas City:
Chairman Atty. MELVYN R. LAGASCA
Vice Chairman Atty. PURITA A. FAJILAN
President Atty. HILDA SACAY-CLAVE
Vice President Atty. FELIX S. SAYAGO.
Secretary Atty. JOSE M. CARINGAL
Treasurer Atty. ROLITO A. ABING
Auditor Atty. MYRNA C. MERCADER
P.R.O. Atty. JOSE G. DE LEON, JR
DIRECTORS:
Atty. RICHARD V. FUNK
Atty. PAMPILO N. ENCARNACION
Atty. ANTONIO B. MANZANO
Atty. CORAZON G. FIGUERRES
Atty. IRSANG ROY P. HANDANG, JR.
Atty. ROMEO A. LIGGAYU
Atty. ARTEMIO AMON
CONSULTANT:
Atty. MANUEL J. LASERNA, JR.
Founder, 2001
For details, please call 911-02281; 0918-90152334; 800-7594 or 0919-3536178.
COMMITTEES
LEGAL EDUCATION
LEGAL RESEARCH & PUBLICATION
BENCH BAR DIALOGUE
FREE LEGAL AID & CRIMINAL JUSTICE
JUDICIAL PROMOTION MONITOR
MEMBERSHIP & FELLOWSHIP
WAYS & MEANS
Email : clavelaw@yahoo.com; melvynlagasca@yahoo.com.
Website : http://laspinasbar.multiply.com
Tel/Fax No. 911-02281 ; 0918-90152334; 8007594
March 20, 2009
For Circulation To All Concern
ANNOUNCEMENT
The New Officers and Directors of the Las Piñas City Bar Association (LPBA), Inc. for the term - March 2009 to March 2010 , elected during the Regular Monthly Board Meeting held on March 18, 2009 (3rd Wednesday) at 6:00 PM at the Cecille’s Restaurant , BF Resort Village, Las Piñas City:
Chairman Atty. MELVYN R. LAGASCA
Vice Chairman Atty. PURITA A. FAJILAN
President Atty. HILDA SACAY-CLAVE
Vice President Atty. FELIX S. SAYAGO.
Secretary Atty. JOSE M. CARINGAL
Treasurer Atty. ROLITO A. ABING
Auditor Atty. MYRNA C. MERCADER
P.R.O. Atty. JOSE G. DE LEON, JR
DIRECTORS:
Atty. RICHARD V. FUNK
Atty. PAMPILO N. ENCARNACION
Atty. ANTONIO B. MANZANO
Atty. CORAZON G. FIGUERRES
Atty. IRSANG ROY P. HANDANG, JR.
Atty. ROMEO A. LIGGAYU
Atty. ARTEMIO AMON
CONSULTANT:
Atty. MANUEL J. LASERNA, JR.
Founder, 2001
For details, please call 911-02281; 0918-90152334; 800-7594 or 0919-3536178.
COMMITTEES
LEGAL EDUCATION
LEGAL RESEARCH & PUBLICATION
BENCH BAR DIALOGUE
FREE LEGAL AID & CRIMINAL JUSTICE
JUDICIAL PROMOTION MONITOR
MEMBERSHIP & FELLOWSHIP
WAYS & MEANS
Thursday, March 19, 2009
Recantation
X rapes V. X is indicted. Trial ensues. The trial court convicts X. He appeals to the appellate court. While the appeal is pending, V receives cash from X. She also applies for a US visa. It is granted by the US Embassy. Pending appeal and two years after judgment was rendered, V executes an affidavit of recantation in favor of X. Then, she flies to USA.
This is the story of convicted rapist Smith, a US marine, and Nicole, a Filipina, which has been hugging the headlines in the Philippine media for the past days.
V has not received any protection from the Philippine Government from the very beginning because of political pressures from the US Government to exonerate Smith and to preserve the Visiting Forces Agreement (VFA), which is the next best things to a military base. (The Philippine Constitution prohibits foreign military bases in the country).
What probative value would you give to the recantation of V?
May I cite below some decisions of the Philippine Supreme Court on the issue of recantation, for purposes of legal research of the visitors of this blog.
In the case of People v. Alicante, 332 SCRA 440, and People v. Junio, 237 SCRA 826, the Philippine Supreme Court reiterated the long-held doctrine in Philippine jurisprudence that an afterthought had no probative value. I would make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. A recantation can be easily secured from poor and ignorant witnesses, usually for money, and is exceedingly unreliable, the Court stated.
In the case of PEOPLE vs. FONTANILLA, GR 147662-63 EN BANC, August 15, 2003, the Philippine Supreme Court held that affidavit of recantation cannot qualify as newly discovered evidence to justify a new trial; that affidavits of retraction of testimonies are generally looked with disfavor because there is always the probability that they may later be repudiated; that . Thus:
X x x.
As for the trial court’s denial of appellant’s motion for new trial arising from Methel’s affidavit of recantation: Said affidavit cannot qualify as newly discovered evidence to justify a new trial, the following requisites for which, and these must concur, are not present: (a) the evidence was discovered after the trial; (b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (c) such evidence is material, not merely cumulative, corroborative, or impeaching, and is of such weight that, if admitted, would probably change the judgment.
Besides, affidavits of retraction of testimonies are generally looked with disfavor because there is always the probability that they may later be repudiated.
x x x The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that “after a careful deliberation over the case, [she] find[s] that the same does not merit or warrant criminal prosecution.
Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. (Underscoring supplied)
X x x.
In the case of PEOPLE vs. AYUMAN, GR 133436 EN BANC, ____, 2004, the Court held that that mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible; that the Court looks with disfavor upon retractions of testimonies previously given in court; that the rationale for the rule is that affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration; and that recanted testimony is exceedingly unreliable. Thus:
X x x
For his part, the Solicitor General, in the appellee’s brief, maintains that Ermita’s affidavit of recantation is an afterthought and exceedingly unreliable. Moreover, the circumstantial evidence relied upon by the trial court sustains the conviction of appellant of the crime charged.
X x x.
But appellant discredits Ermita’s sworn statement because she retracted. It bears emphasis that mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible, as in this case. We look with disfavor upon retractions of testimonies previously given in court. The rationale for the rule is obvious: Affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it will later be repudiated. Thus, the trial court correctly disregarded Ermita’s affidavit of desistance. Obviously, she was influenced by appellant to execute it. Moreover, if it were true that an unidentified person killed their son, why did appellant fail to report the matter to the proper authorities? There can be no other conclusion, therefore, than that Ermita’s affidavit of retraction is an afterthought, intended to exculpate appellant from criminal liability.
X x x.
In the case of PEOPLE vs. OCTAVIO MENDOZA, G.R. No. 109279-80, January 18, 1999, it was held that mere retraction by a prosecution witness does not necessarily vitiate his original testimony; and that a testimony solemnly given in court should not be lightly set aside and that before this can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under which each was given be carefully scrutinized, the reasons or motives for the change carefully scrutinized, in other words, all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents the truth. Thus:
X x x.
The contention is without merit. Mere retraction by a prosecution witness does not necessarily vitiate his original testimony. As this Court held in People vs. Ubina: 20 [97 Phil. 515, 525-526 (1955). Reiterated in People vs. Panida, G.R. Nos. 127125 & 138952, July 6, 1999.]
" x x x Merely because a witness says that what he had declared is false and that what he now says is true, is not sufficient ground for concluding that the previous testimony is false. No such reasoning has ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous contradictory statement [now Rule 132, section 11]; not that a previous statement is presumed to be false merely because a witness now says that the same is not true. The jurisprudence of this Court has always been otherwise, i.e., that contradictory testimony given subsequently does not necessarily discredit the previous testimony if the contradictions are satisfactorily explained. (U.S. vs. Magtibay, 17 Phil. 417; U.S. vs. Briones, 28 Phil. 362; U.S. vs. Dasiip, 26 Phil. 503; U.S. vs. Lazaro, 34 Phil. 871). We have also held that if a previous confession of an accused were to be rejected simply because the latter subsequently makes another confession, all that an accused would do to acquit himself would be to make another confession out of harmony with the previous one (U.S. vs. Acasio, 37 Phil. 70). Similarly, it would be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on change their mind[s] for one reason or another, for such rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous, witnesses. x x x
The rule should be that a testimony solemnly given in court should not be lightly set aside and that before this can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under which each given carefully scrutinized, the reasons or motives for the change carefully scrutinized-in other words, all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents the truth."
X x x.
Form your own opinion.
Atty. Manuel J. Laserna Jr.
lcmlaw@gmail.com
This is the story of convicted rapist Smith, a US marine, and Nicole, a Filipina, which has been hugging the headlines in the Philippine media for the past days.
V has not received any protection from the Philippine Government from the very beginning because of political pressures from the US Government to exonerate Smith and to preserve the Visiting Forces Agreement (VFA), which is the next best things to a military base. (The Philippine Constitution prohibits foreign military bases in the country).
What probative value would you give to the recantation of V?
May I cite below some decisions of the Philippine Supreme Court on the issue of recantation, for purposes of legal research of the visitors of this blog.
In the case of People v. Alicante, 332 SCRA 440, and People v. Junio, 237 SCRA 826, the Philippine Supreme Court reiterated the long-held doctrine in Philippine jurisprudence that an afterthought had no probative value. I would make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. A recantation can be easily secured from poor and ignorant witnesses, usually for money, and is exceedingly unreliable, the Court stated.
In the case of PEOPLE vs. FONTANILLA, GR 147662-63 EN BANC, August 15, 2003, the Philippine Supreme Court held that affidavit of recantation cannot qualify as newly discovered evidence to justify a new trial; that affidavits of retraction of testimonies are generally looked with disfavor because there is always the probability that they may later be repudiated; that . Thus:
X x x.
As for the trial court’s denial of appellant’s motion for new trial arising from Methel’s affidavit of recantation: Said affidavit cannot qualify as newly discovered evidence to justify a new trial, the following requisites for which, and these must concur, are not present: (a) the evidence was discovered after the trial; (b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (c) such evidence is material, not merely cumulative, corroborative, or impeaching, and is of such weight that, if admitted, would probably change the judgment.
Besides, affidavits of retraction of testimonies are generally looked with disfavor because there is always the probability that they may later be repudiated.
x x x The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that “after a careful deliberation over the case, [she] find[s] that the same does not merit or warrant criminal prosecution.
Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. (Underscoring supplied)
X x x.
In the case of PEOPLE vs. AYUMAN, GR 133436 EN BANC, ____, 2004, the Court held that that mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible; that the Court looks with disfavor upon retractions of testimonies previously given in court; that the rationale for the rule is that affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration; and that recanted testimony is exceedingly unreliable. Thus:
X x x
For his part, the Solicitor General, in the appellee’s brief, maintains that Ermita’s affidavit of recantation is an afterthought and exceedingly unreliable. Moreover, the circumstantial evidence relied upon by the trial court sustains the conviction of appellant of the crime charged.
X x x.
But appellant discredits Ermita’s sworn statement because she retracted. It bears emphasis that mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible, as in this case. We look with disfavor upon retractions of testimonies previously given in court. The rationale for the rule is obvious: Affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it will later be repudiated. Thus, the trial court correctly disregarded Ermita’s affidavit of desistance. Obviously, she was influenced by appellant to execute it. Moreover, if it were true that an unidentified person killed their son, why did appellant fail to report the matter to the proper authorities? There can be no other conclusion, therefore, than that Ermita’s affidavit of retraction is an afterthought, intended to exculpate appellant from criminal liability.
X x x.
In the case of PEOPLE vs. OCTAVIO MENDOZA, G.R. No. 109279-80, January 18, 1999, it was held that mere retraction by a prosecution witness does not necessarily vitiate his original testimony; and that a testimony solemnly given in court should not be lightly set aside and that before this can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under which each was given be carefully scrutinized, the reasons or motives for the change carefully scrutinized, in other words, all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents the truth. Thus:
X x x.
The contention is without merit. Mere retraction by a prosecution witness does not necessarily vitiate his original testimony. As this Court held in People vs. Ubina: 20 [97 Phil. 515, 525-526 (1955). Reiterated in People vs. Panida, G.R. Nos. 127125 & 138952, July 6, 1999.]
" x x x Merely because a witness says that what he had declared is false and that what he now says is true, is not sufficient ground for concluding that the previous testimony is false. No such reasoning has ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous contradictory statement [now Rule 132, section 11]; not that a previous statement is presumed to be false merely because a witness now says that the same is not true. The jurisprudence of this Court has always been otherwise, i.e., that contradictory testimony given subsequently does not necessarily discredit the previous testimony if the contradictions are satisfactorily explained. (U.S. vs. Magtibay, 17 Phil. 417; U.S. vs. Briones, 28 Phil. 362; U.S. vs. Dasiip, 26 Phil. 503; U.S. vs. Lazaro, 34 Phil. 871). We have also held that if a previous confession of an accused were to be rejected simply because the latter subsequently makes another confession, all that an accused would do to acquit himself would be to make another confession out of harmony with the previous one (U.S. vs. Acasio, 37 Phil. 70). Similarly, it would be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on change their mind[s] for one reason or another, for such rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous, witnesses. x x x
The rule should be that a testimony solemnly given in court should not be lightly set aside and that before this can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under which each given carefully scrutinized, the reasons or motives for the change carefully scrutinized-in other words, all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents the truth."
X x x.
Form your own opinion.
Atty. Manuel J. Laserna Jr.
lcmlaw@gmail.com
Tuesday, March 17, 2009
Ombudsman
LAS PINAS CITY BAR ASSOCIATION .
Unit 15, Star Arcade, C.V. Starr Avenue
Philamlife Village, Las Pinas City 1743, Philippines
Tel/Fax: 8725443, 8742539
Email: lcmlaw@gmail.com,
Website: http://laspinasbar.multiply.com
March 17, 2009
Fax
Sen. FRANCIS ESCUDERO
Member, Philippine Senate
GSIS Complex, Pasay City
RE : OMBUDSMAN Issue
Mabuhay:
Congratulations for your successful diplomatic visit to Australia last week.
I am writing in re: the Ombudsman issue.
I feel that there is sufficient legal and jurisprudential basis to justify your publicized theory that the term of the current Ombudsman Merceditas Gutierrez expires in October 2009. (Michael Lim, et. al., “Ombudsman’s Days Numbered…”, Philippine Daily Inquirer, March 12, 2009, Page A2).
If you or your advocacy group would file a Supreme Court class petition to test your legal theory, may I respectfully manifest that I am ready to be included therein as a co-petitioner. It is the least I could do to help promote the rule of law in our country.
I shall appreciate it if your staff could mail to me certified true copies of the November 2002 appointment of past Ombudsman Simeon Marcelo and the December 2005 appointment of current Ombudsman Merceditas Gutierrez. (I know you have access to them as a Senator and as a member of the Judicial and Bar Council). I may ask our local bar association to file an independent Supreme Court petition on the matter by November 2009, if so advised by your good self and in support of whatever action you may take on the above issue.
Have a blessed and liberated day. Thank you.
Sincerely,
Atty. Manuel J. Laserna Jr.
Founder and Board Consultant
Professor of Law, FEU (ret.)
Past Vice Pres., IBP PPLM Chapter
3rd Place, 1984 Bar Exams
AB Journalism, UP, 1975
Bachelor of Laws, FEU, 1984, cum laude
Master of Laws, UST, 2000, FEU Fellow
Ombudsman’s days numbered
Chiz: Gutierrez serving unexpired term of Marcelo
By Michael Lim Ubac, Edson C. Tandoc Jr.
Philippine Daily Inquirer
First Posted 05:10:00 03/12/2009
MANILA, Philippines — Ombudsman Merceditas Gutierrez has only seven months left to serve in the office from which civil society and opposition leaders want her impeached.
Sen. Francis “Chiz” Escudero has found a novel argument to yank Gutierrez out in case impeachment proceedings against the Ombudsman fail in the administration-controlled House of Representatives.
In a statement issued from Canberra, Australia on Wednesday, Escudero contended that Gutierrez is only serving out the unexpired term of her predecessor, Simeon Marcelo, and according to his calculations, her term ends in October.
The senator, a lawyer and member of the Judicial Bar Council, recalled that Marcelo was appointed Ombudsman in October 2002 and resigned in November 2005. President Gloria Macapagal-Arroyo then appointed Gutierrez as his replacement.
Misinterpreted, misled
Commenting on Escudero’s latest arguments, Assistant Ombudsman Jose de Jesus stressed that Gutierrez “is not just merely filling in for Marcelo.”
The senator “may have misinterpreted the law or may have been misled,” said De Jesus who has been designated by the Ombudsman to answer questions concerning her term of office.
Escudero cited a 1955 Supreme Court ruling, Republic v. Imperial, to support his position that Gutierrez was not entitled to a full term of seven years.
“When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring such term of office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is prescribed by the Constitution, yet the incumbent only holds until the time arrives for filling the office in the regular mode and at the regular time prescribed by the Constitution,” the high tribunal ruled.
The office, not the person
“The Office of the Ombudsman fits the rule enunciated by the Supreme Court in its 1955 decision. It has not been overturned so it is still binding and absolutely enforceable,” Escudero said.
He said it was the Office of the Ombudsman that had a fixed term of seven years and not the person occupying it.
“Therefore, to say that Gutierrez has only until October 2009 to serve as Ombudsman rests on firm and solid legal basis. This is a Supreme Court decision and all of us must follow the rule of law,” he said.
De Jesus countered by quoting from Republic Act 6770, the law that created the Office of the Ombudsman in 1989, which says that “in case the incumbent Ombudsman resigns, the Overall Deputy Ombudsman shall serve as acting Ombudsman until a new Ombudsman shall have been appointed for a full term.”
He said that when Marcelo resigned in 2005, then Overall Deputy Ombudsman Margarito Gervacio Jr. took over as acting Ombudsman until Gutierrez was appointed as the new Ombudsman in December 2005.
Thus, Gutierrez started her seven-year term in December 2005 and this term expires not in seven months but in December 2012, De Jesus argued.
Earlier this month, former Senate President Jovito Salonga and 30 other civil society leaders filed an impeachment complaint against Gutierrez for betrayal of public trust and culpable violation of the Constitution for her alleged inaction in several corruption scandals involving officials and individuals close to Malacañang.
Escudero has just arrived from a four-day trip in Australia on the invitation of the Australian government. He sent his press statement from Canberra, where he met with Australian Prime Minister Kevin Rudd and other government officials to discuss labor, trade and migration issues between the two countries.
He asked Australian authorities to allow the entry of more health professionals and non-skilled workers displaced in other countries.
“We talked about the possibility of a government-to-government arrangement on labor migration at various levels,” he said in a press statement before returning to Manila.
He also met with Julia Gillard, deputy Prime Minister and minister for employment, education and workplace, and Sen. Chris Evans, minister of immigration.
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090312-193676/Ombudsmans-days-numbered
REPUBLIC OF THE PHILIPPINES vs. HON. DOMINGO IMPERIAL and HON. RODRIGO D. PEREZ, EN BANC, G.R. No. L-8684, March 31, 1955
SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS, NOW A CONSTITUTIONAL BODY. — The constitutional amendment establishing an independent Commission on Elections (Article X) became operative on December 2, 1940, superseding the purely statutory Commission previously created and organized along the same lines by Commonwealth Act No. 607.
2. ID.; ID.; REGULAR ROTATION OR CYCLE IN ITS MEMBERSHIP. — The provision that of the first three commissioners appointed "one shall hold office for 9 years, another for 6 years, and the third for 3 years," when taken together with the prescribed term of office for 9 years, without reappointment, evidences a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having subsequent members appointable only once every three years. This had already been indicated in previous opinions of the Supreme Court (Nacionalista Party vs. Angelo Bautista, 47 Off. Gaz., 2356; Nacionalista Party vs. Vera, 47 Off. Gaz., 2375), where it was declared that "with these periods it was the intention to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission" as a body for the impartiality and independence of such individual Commissioner's tenure was safeguarded by other provisions in the same Article X of the fundamental charter. Now, the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three commissioners should start on a common date, June 21, 1941; and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals between appointments would be destroyed, and the evident purpose of the rotation (to prevent that a four-year administration should appoint more than one permanent and regular commissioner) would be frustrated.
D E C I S I O N
REYES, J.B.L., J p:
This is a quo warranto proceeding instituted by the Solicitor General against Honorable Domingo Imperial and Honorable Rodrigo Perez, to test the legality of their continuance in office as Chairman and Member, respectively, of the Commission on Elections.
According to the Solicitor General, the first commissioners of Elections were duly appointed and qualified on July 12, 1945, with the following terms of office:
Hon. Jose Lopez Vito, Chairman, for 6 years, expiring on July 12, 1954
Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951
Hon. Vicente Vera, Member, for 3 years, expiring on July 12, 1948;
that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente de Vera was promoted Chairman by appointment dated May 26, 1947; that in accordance with the ruling of this Court in Nacionalista Party vs. Vera, 47 Off. Gaz., 2375, and Nacionalista Party vs. Felix Angelo Bautista, 47 Off. Gaz., 2356, the term of office of Chairman De Vera would have expired on July 12, 1954, that is, the date when the term of office of the first Chairman, Honorable Jose Lopez Vito, would have expired; that Chairman Vicente de Vera died in August, 1951, before the expiration of the maximum term of nine years (on July 12, 1954) of the first Chairman of the Commission; that on August 11, 1951, the respondent Honorable Domingo Imperial was appointed Chairman to succeed Honorable Vicente de Vera; that while the appointment of the respondent Honorable Imperial provided that he was to serve "for a term expiring July 12, 1960", the term for which he could legally serve as Chairman legally expired on July 12, 1954, that is, the expiration of the nine-year term for which the first Chairman, Honorable Jose Lopez Vito, was appointed; that the respondent Honorable Rodrigo Perez was appointed Member of the Commission on December 8, 1949, for "a term of nine years expiring on November 24, 1958", vice Honorable Francisco Enage, who was retired on November, 1949; that the term of office of respondent Perez legally expired on July 12, 1951, the expiration of the term of six years for which Commissioner Enage, his predecessor, was appointed. Wherefore, the Solicitor General concludes that the respondents Commissioners Imperial and Perez have ceased to have any legal or valid title to the positions of Chairman and Member, respectively, of the Commission on Elections, and that therefore, their positions should be declared vacant.
The respondents filed separate answer to the petition for quo warranto, both of which pray for the dismissal of the petition.
The defense of respondent Honorable Domingo Imperial is substantially that Honorable Jose Lopez Vito was first appointed Chairman of the Commission on Elections on May 12, 1941, for a term of nine years expiring on May 12, 1950; that when Commissioner Lopez Vito was again appointed Chairman on July 12, 1945, his nine-year, term of office under this second appointment should not be reckoned from the date thereof, that is, July 12, 1945, but from the date of his first appointment in 1941, so that the term under his second appointment expired on May 12, 1950; that respondent Imperial having been appointed after the expiration of Chairman Lopez Vito's full term of nine years in 1950, he (respondent Imperial) should serve office for a full term of nine years, ending only on August 10, 1960. Respondent Imperial stresses the unconstitutionality of Chairman Lopez Vito's second appointment to serve up to July 12, 1954, upon the ground that under the Constitution, he (Chairman Lopez Vito) could neither be appointed for more than nine years nor be allowed to succeed himself.
The other respondent, Honorable Rodrigo Perez, alleges that since Chairman Lopez Vito was the first to be appointed under the Constitution on May 13, 1941, the terms of office of all the Commissioners on Election should be reckoned from that date, May 13, 1941, to maintain the three-year difference between the dates of expiration of their respective terms as provided for by the Constitution; that the term of office of Member Francisco Enage (his predecessor) should therefore be considered as having started on May 13, 1941, and since Enage was appointed only for six years, his term of office expired on May 12, 1947; and that since respondent Perez was appointed (on December 8, 1949) after Commissioner Enage's six-year term of office had already expired, he should serve for a full term of nine years from the expiration of Enage's term of office on May 12, 1947; hence, his own term of office would expire only on May 12, 1956. Respondent Perez argues that if the computation of the Solicitor General were to be followed, that is, that Commissioner Enage's term be counted from July 12, 1945 ending on July 12, 1951, this term would end at a date very close to the expiration of Commissioner Lopez Vito's term on May 12, 1950, so there would be only a difference of fourteen months between the expiration of the terms of office of Commissioners Lopez Vito and Enage, a situation which is contrary to and violative of the Constitution that prescribes a difference of three years between the dates of the expiration of the terms of the Members of the Commission.
The issues now posed demand a re-examination and application of the Constitutional amendment establishing an independent Commission on Elections (Article X) that became operative on December 2, 1940, superseding the purely statutory Commission previously created and organized along the same lines by Commonwealth Act No. 607. While this Court already had occasion to make pronouncements on the matter in previous decisions, the same are not considered decisive in view of the divergence of opinions among the members of the Court at the time said decisions were rendered.
Section 1, paragraph 1, of Article X of the Constitution reads as follows:
"SEC. 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."
The provision that of the first three commissioners appointed, "one shall hold office for 9 years, another for 6 years, and the third for 3 years," when taken together with the prescribed term of office for 9 years, without reappointment, evidences a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having subsequent members appointable only once every three years, This had already been indicated in previous opinions of this Court (Nacionalista Party vs. Angelo Bautista, 1 47 Off. Gaz., 2356; Nacionalista Party vs. Vera, 2 47 Off. Gaz., 2375), where it was declared that "with these periods it was the intention to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission" as a body, we may add, for the impartiality and independence of each individual Commissioner's tenure was safeguarded by other provisions in the same Article X of the fundamental charter (removability by impeachment alone, and stability of compensation in sec. 1; disability to practice any profession and prohibition of conflicting interest in sec. 3).
That the rotation of the Commissioner's appointments at regular and fixed intervals of three years was a deliberate plan is shown by the history of the provision, and by selection of the fixed term of nine years for all subsequent appointees, since no other term would give such a result. Initiated under Commonwealth Act No. 607, the rotation plan was transferred without variation to the Constitution, evidently for the purpose of preserving it from hasty and irreflexive changes.
Now, the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three commissioners should start on a common date; and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals between appointments would be destroyed, and the evident purpose of the rotation (to prevent that a four-year administration should appoint more than one permanent and regular commissioner) would be frustrated.
While the general rule is that a public officer's death or other permanent disability creates a vacancy in the office, so that the successor is entitled to hold for a full term, such rule is recognized to suffer exception in those cases where the clear intention is to have vacancies appointments at regular intervals. Thus, in 43 Amer. prudence, sec. 159, p. 18, it is stated:
". . . In like manner, it has been ruled that the resignation or the removal of an officer during his term and the election or appointment of a successor do not divide the term or create a new and distinct one, and that in such a case the successor is filling out his predecessor's term. It seems the term of office of one elected or appointed to fill a vacancy in a board of several officers will be held to be for the unexpired term of his predecessor only, where the clear intent of the creating power is that the entire board should not go out of office at once, but that different groups should retire at regularly recurring intervals." (Italics supplied)
In State ex rel. Rylands vs. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 LRA 643, the Court, discussing provisions in the charter of the city of Bridgeport requiring two city Commissioners to serve for 2 years, and another two to serve for 4 years, said:
". . . The evident intent of section 50 is to secure to the city at all times, so far as possible, the services of commissioners, half of whom have had the benefit of at least a year's experience in office, and to divide the membership of each half equally between the leading political parties. Parmater vs. State, 102 Ind. 90, 93. Such a board had existed in Bridgeport since 1868. The charter of that year provided for the election of two commissioners to serve for one year, and two for two years, and for the annual election thereafter of two to serve for two years, and secured a nonpartisan character to the board by allowing no one to vote for more than two out of the four, and requiring the election of deputy commissioners to replace each elected commissioner in case of a vacancy. From that time until the resignation of the entire board, in December, 1890, its membership had been annually renewed by the appointment of two commissioners for a term of two years, each belonging to a different political party from the other. Were the contention of the defendant well founded, the successors of the four commissioners who resigned in December, 1890, should have been, and in law were, appointed each for two-year term, thus totally and forever frustrating the carefully devised scheme of alternating succession which had been followed for twenty years." (Cas. Cit., 22 LRA, 669)
The following cases also support the rule:
"When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring during such term of office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is prescribed by the Constitutional, yet the incumbent only holds until the time arrives for filling the office in the regular mode and at the regular time prescribed by the Constitution." (Simpson vs. Willard, 14 S. C. 191).
And in Baker vs. Kirk, 33 Ind. 517, it was held that the term of office of one appointed to fill a vacancy in one of three memberships of a board will, in the absence of any express provision therefore, be deemed to be for the unexpired term, where the statute fixes the first term at unequal lengths, so as to prevent an entire change of membership at any one time. In speaking of the reasoning to the contrary, the court said: "It would make the term of office to depend upon the pleasure or caprice of the incumbent, and not upon the will of the legislature as expressed in plain and undoubted language in the law. This construction would defeat the true intent and meaning of the legislature, 50 LRA. (N. S.), which was to prevent an entire change of the board of directors of the prison."
Other cases to the same effect are collated in the editorial note in State Ex. Rel. Fish vs. Howell, 50 L. R. A. (N. S.), 345.
The fact that the orderly rotation and renovation of Commissioners would be wrecked unless, in case of early vacancy, a successor should only be allowed to serve for the unexpired portion of each regular term, sufficiently explains why no express provision to that effect is made in Article X of the Constitution. The rule is so evidently fundamental and indispensable to the working of the plan that it became unnecessary to state it in so many words. The mere fact that such appointments would make the appointees serve for less than 9 years does not argue against reading such limitation into the constitution, because the nine-year term cannot be lifted out of context and independently of the provision limiting the terms of the terms of the first commissioners to nine, six and three years; and because in any event, the unexpired portion is still part and parcel of the preceding term, so that in filling the vacancy, only the tenure of the successor is shortened, but
not the term of office.
It may be that the appointing power has sufficient inducements at hand to create vacancies in the Commission, and find occasion for appointments thereto, whenever it chooses to do so. That possibility, however, would not in any way justify this Court in setting at naught the clear intention of the Constitution to have members of Commission appointed at regular 3-year intervals.
It is argued that under the rule, one may be appointed for a much shorter term than nine years, say one year or even less, and his independence would be thereby reduced. The point is, however, that the majority of the Commission would not be affected (slave in really exceptional cases) and independence of the majority is the independence of the whole Commission.
For the same reasons it must be admitted that the terms of the first three Commissioners should be held to have started at the same moment, irrespective of the variations in their dates of appointment and qualification, in order that the expiration of the first terms of nine, six and three years should lead to the regular recurrence of the three-year intervals between the expiration of the terms. Otherwise, the fulfillment and success of the carefully devised constitutional scheme would be made to depend upon the willingness of the appointing power to conform thereto.
It would be really immaterial whether the terms of the first Commissioners appointed under the Constitutional provision should be held to start from the approval of the constitutional amendment (December 2, 1940), the reorganization of the Commission under C. A. 657, on June 21, 1941, or from the appointment of the first Chairman, Honorable Jose Lopez Vito, on May 13, 1941. The point to be emphasized is that the terms of all three Commissioners appointed under the Constitution began at the same instant and that, in case of a belated appointment (like that of Commissioner Enage), the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. No other rule could satisfy the constitutional plan.
Of the three starting dates given above, we incline to prefer that of the organization of the constitutional Commission on Elections under Commonwealth Act 657, on June 21, 1941, since said act implemented and completed the organization of the Commission that under the Constitution "shall be" established. Certainly the terms can not begin from the first appointments, because appointment to a Constitution office is not only a right, but equally a duty that should not be shirked or delayed. On the basic tenets of our democratic institutions, it can hardly be conceded that the appointing power should possess discretion to retard compliance with its constitutional duty to appoint when delay would impede or frustrate the plain intent of the fundamental law. Ordinarily, the operation of the Constitution can not be made to depend upon the Legislature or the Executive, but in the present case the generality of the organizational lines under Article X seems to envisage prospective implementation.
Applying the foregoing rulings to the case at bar, we find that the terms of office of the first appointees under the constitution should be computed as follows:
Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June 20, 1950.
Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20, 1947.
The first 3 year term, from June 21, 1941 to June 20, 1944, was not filled.
Thereafter, since the first three-year term had already expired, the appointment (made on July 12, 1945) of the Honorable Vicente de Vera must be deemed for the full term of nine years, from June 21, 1944, to June 20, 1953.
The first vacancy occurred by expiration of the initial 6-year term of Commissioner Enage on June 21, 1937 (although he served as de facto Commissioner until 1949). His successor, respondent Rodrigo Perez, was named for a full nine-year term. However, on the principles heretofore laid, the nine-year term of Commissioner Perez (vice Enage) should be held to have started in June 21, 1947, to expire on June 20, 1956.
The second vacancy happened upon the death of Chairman Jose Lopez Vito, who died on May 7, 1947, more than two years before the expiration of his full term. To succeed him as Chairman, Commissioner Vicente de Vera was appointed. Such appointment, if at all valid, could legally be only for the unexpired period of the Lopez Vito's term, up to June 20, 1950.
To fill the vacancy created by Vera's assumption of the Chairmanship, Commissioner Leopoldo Rovira was appointed on May 22, 1947. Pursuant to the principles laid down, Rovira could only fill out the balance of Vera's term, until June 20, 1953, and could not be reappointed thereafter.
Commissioner Vera's tenure as Chairman (vice Lopez Vito) expired, as we have stated, on June 20, 1950, the end of Lopez Vito's original term. A vacancy, therefore, occurred on that date that Vera could no longer fill, since his reappointment was expressly prohibited by the Constitution. The next Chairman was respondent Commissioner Domingo Imperial, whose term of nine years must be deemed to have begun on June 21, 1950, to expire on June 20, 1959.
The vacancy created by the legal expiration of Rovira's term on June 20, 1953 appears unfilled up to the present. The time elapsed, as we have held, must be counted against his successor, whose legal term is for nine years, from June 21, 1953 to June 20, 1962.
The fact must be admitted that appointments have heretofore been made with little regard for the Constitutional plan. However, if the principles set in this decision are observed, no difficulty need be anticipated for the future.
And it appearing, from the foregoing, that the legal terms of office of the respondents Perez and Imperial have not as yet expired, whether the original terms started from the operation of the Constitutional amendments or the enactment of C. A. 657, the petition for quo warranto is hereby dismissed without costs.
Pablo, Bengzon, Montemayor, Jugo, Labrador, and Concepcion, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the opinion of Mr. Justice J. B. L Reyes except as to the prohibition on reappointment. I believe the prohibition applies only to those who have served a term of nine years.
BAUTISTA ANGELO, J., dissenting and concurring:
This case concerns the interpretation of the provision of the Constitution regarding the tenure of office of the members of the Commission on Elections who are appointed to succeed those first appointed in case they resign, retire, or die before the expiration of their term of office. The majority holds that the appointees can hold office only for the unexpired term even if their appointments run for a full term of nine years. With this I disagree.
The pertinent provision of the Constitution is contained in section 1, Article X, which reads:
"SECTION 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."
It would appear that the framers of the Constitution intended to give to the members of the Commission on Elections a term of office of nine years without reappointment. The only exception is with regard to the first appointees one of whom shall hold office for nine years, another for six years, and the third for three years. With regard to the latter, nothing is provided as to their reappointment which led some members of the Court to believe that they can be reappointed provided the whole tenure would not exceed nine years. The Constitution is likewise silent as to the manner any vacancy that may occur in the positions held by the members first appointed should be filled.
I fully agree with the theory that the purpose of providing for a difference of three years in the tenure of office of the members first appointed is to establish a cycle or rotation system to prevent a four-year administration from appointing more than one member not only to insure the continuity of the policy of the Commission on Elections but also to safeguard its independence and that of its members. This purpose is plausible if only it can be carried out to the letter, but experience has shown that it is impracticable and has never been observed either by the Chief Executive or by Congress. An analysis of the appointments heretofore made to fill vacancies in the membership of said Commission will bear this out. The Chief Executive in filling the vacancies in the positions held by the members first appointed have extended appointments for a term of nine years never for the unexpired period, and these appointments have always met the sanction of Congress.
This uninterrupted practice and contemporaneous construction placed on the above provision of the Constitution by the two branches of our Government, the executive and the legislative, cannot lightly be brushed aside because they are the constitutional agencies which have adopted that amendment to the Constitution and have implemented it having due regard for its provision of events. And such interpretation should be given due weight and recognition if we are to accord due respect to the principle of comity that should exists among the three branches of the Government.
"This official ruling of the executive officials is now entitled to consideration by the courts. Courts will and should respect the contemporaneous construction placed upon a statute by the executive officers whose duty it is to enforce it, and unless such interpretation is clearly erroneous will ordinarily be controlled thereby. (In re Allen (1903), 2 Phil., 630, following Penneyer vs. McConnaughy (1890), 140 U. S. 363, Government of Philippine Islands Ex. Rel. Municipality of Cardona vs. Municipality of Binangonan (1916), 34 Phil., 518)." (Molina vs. Rafferty, 37 Phil., 545, 555).
"At the same time, the contemporaneous construction of the law by two departments of the Government — one of the legislative branch responsible for its enactment, and the other the effective branch responsible for its enforcement — while not controlling on the Judiciary, is entitled to our respectful consideration. For the orderly and harmonious interpretation and advancement of the law, the courts should, when possible, keep step with the other departments." (Yra vs. Abaño, 52 Phil., 380, 384.)
"And it is a rule repeatedly followed by this court that the construction placed upon a law at a time by the officials in charge of enforcing it should be respected." (Guanio vs. Fernandez, 55 Phil., 814, 819.)
The above interpretation seems to be the most reasonable and more in line with the letter and spirit of the Constitution. The purpose is to establish "an independent Commission on Elections" and it was thought the best way it could be accomplished is to give to its members a term of office of nine (9) years in the hope that this would give them that feeling of security which would make them impartial in the performance of their functions. The provision regarding the cycle or rotation system in the appointments of the members first appointed is a further safeguard to promote such independence but if that cycle cannot be maintained because of unavoidable human factors that may supervene, that should not be allowed to stand against the above purpose of giving to every subsequent appointee a term of office of nine (9) years. The former should give way to the latter.
The theory that, merely to maintain the cycle at any cost, if a vacancy occurs in the office of the members first appointed, the new appointee can only be appointed for the unexpired term, would defeat the independence of the poll body rather than promote it, for the new appointees would be holding their positions without that feeling of security that would guarantee their independence as they would be angling for a reappointment or for other plums in the government service. Moreover, such interpretation would run counter to the well- known rule that where only the length of the tern is fixed by the Constitution and neither the commencement non termination is prescribed, or nothing is provided regarding the filling of the unexpired term, the subsequent appointee, holds the office for full term, and not merely for the unexpired portion. And our Constitution comes within the purview of this rule.
"When merely the length of the term is fixed, without reference to an unexpired term, or to a vacancy in the term of office, as distinguished from a vacancy in the office itself, it is held in some cases that on the happening of a vacancy the office reverts to the people or sovereign and when again vested it is not for the unexpired term, but for the full term. This rule, in the absence of constitutional or statutory provisions regulating the filling of vacancies, has been applied in the ease of elective officers where the law provides that they shall be elected for a term of a specified number of years." (67 C. J. S., 216.)
"On the other hand where no time is fixed for the beginning or end of the period during which a public office is to be occupied, and the duration of such period is alone designated, the contrary conclusion is reached, and a person selected to fill a vacancy in such office may serve the full term and not merely the unexpired balance of the prior incumbent's term. This is true especially where no authority exists in the legislature for fixing the beginning or the ending of the term, or where such authority rests in the legislature, and the legislature has not exercised it. The reason for this rule is that when a vacancy happens by death, resignation, or removal, the term is gone and the office reverts, as it did at common law to the crown, to be again filled on like condition, for the full term prescribed." (22 R. C. L., 553)
Why is it that the Constitution does not contain any provision relative to the filling of any vacancy in the office held by the members first appointed? The answer is simple: the first sentence of section 1, Article X already provides that future appointments should be made for a term of nine (9) years. If the intention were otherwise, the framers of the Constitution would have inserted therein a proviso similar to that covering vacancies in the office of senators or representatives wherein it was clearly directed that the new incumbent shall only serve for the unexpired term (Section 8, (2) Article VI, Constitution).
If this theory is entertained it follows that respondent Domingo Imperial, who was appointed on August 11, 1951 for a term of nine (9) years ending on July 12, 1960, and respondent Rodrigo D. Perez who was appointed on November 8, 1949, for a term of nine (9) years ending on November 24, 1958, are still entitled to their positions, and, therefore, the present petition for quo warranto should be dismissed.
As this is the conclusion reached by the majority opinion, I concur in the result.
Paras, C. J., and Reyes, A., J., concur.
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March 17, 2009
Fax
Sen. FRANCIS ESCUDERO
Member, Philippine Senate
GSIS Complex, Pasay City
RE : OMBUDSMAN Issue
Mabuhay:
Congratulations for your successful diplomatic visit to Australia last week.
I am writing in re: the Ombudsman issue.
I feel that there is sufficient legal and jurisprudential basis to justify your publicized theory that the term of the current Ombudsman Merceditas Gutierrez expires in October 2009. (Michael Lim, et. al., “Ombudsman’s Days Numbered…”, Philippine Daily Inquirer, March 12, 2009, Page A2).
If you or your advocacy group would file a Supreme Court class petition to test your legal theory, may I respectfully manifest that I am ready to be included therein as a co-petitioner. It is the least I could do to help promote the rule of law in our country.
I shall appreciate it if your staff could mail to me certified true copies of the November 2002 appointment of past Ombudsman Simeon Marcelo and the December 2005 appointment of current Ombudsman Merceditas Gutierrez. (I know you have access to them as a Senator and as a member of the Judicial and Bar Council). I may ask our local bar association to file an independent Supreme Court petition on the matter by November 2009, if so advised by your good self and in support of whatever action you may take on the above issue.
Have a blessed and liberated day. Thank you.
Sincerely,
Atty. Manuel J. Laserna Jr.
Founder and Board Consultant
Professor of Law, FEU (ret.)
Past Vice Pres., IBP PPLM Chapter
3rd Place, 1984 Bar Exams
AB Journalism, UP, 1975
Bachelor of Laws, FEU, 1984, cum laude
Master of Laws, UST, 2000, FEU Fellow
Ombudsman’s days numbered
Chiz: Gutierrez serving unexpired term of Marcelo
By Michael Lim Ubac, Edson C. Tandoc Jr.
Philippine Daily Inquirer
First Posted 05:10:00 03/12/2009
MANILA, Philippines — Ombudsman Merceditas Gutierrez has only seven months left to serve in the office from which civil society and opposition leaders want her impeached.
Sen. Francis “Chiz” Escudero has found a novel argument to yank Gutierrez out in case impeachment proceedings against the Ombudsman fail in the administration-controlled House of Representatives.
In a statement issued from Canberra, Australia on Wednesday, Escudero contended that Gutierrez is only serving out the unexpired term of her predecessor, Simeon Marcelo, and according to his calculations, her term ends in October.
The senator, a lawyer and member of the Judicial Bar Council, recalled that Marcelo was appointed Ombudsman in October 2002 and resigned in November 2005. President Gloria Macapagal-Arroyo then appointed Gutierrez as his replacement.
Misinterpreted, misled
Commenting on Escudero’s latest arguments, Assistant Ombudsman Jose de Jesus stressed that Gutierrez “is not just merely filling in for Marcelo.”
The senator “may have misinterpreted the law or may have been misled,” said De Jesus who has been designated by the Ombudsman to answer questions concerning her term of office.
Escudero cited a 1955 Supreme Court ruling, Republic v. Imperial, to support his position that Gutierrez was not entitled to a full term of seven years.
“When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring such term of office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is prescribed by the Constitution, yet the incumbent only holds until the time arrives for filling the office in the regular mode and at the regular time prescribed by the Constitution,” the high tribunal ruled.
The office, not the person
“The Office of the Ombudsman fits the rule enunciated by the Supreme Court in its 1955 decision. It has not been overturned so it is still binding and absolutely enforceable,” Escudero said.
He said it was the Office of the Ombudsman that had a fixed term of seven years and not the person occupying it.
“Therefore, to say that Gutierrez has only until October 2009 to serve as Ombudsman rests on firm and solid legal basis. This is a Supreme Court decision and all of us must follow the rule of law,” he said.
De Jesus countered by quoting from Republic Act 6770, the law that created the Office of the Ombudsman in 1989, which says that “in case the incumbent Ombudsman resigns, the Overall Deputy Ombudsman shall serve as acting Ombudsman until a new Ombudsman shall have been appointed for a full term.”
He said that when Marcelo resigned in 2005, then Overall Deputy Ombudsman Margarito Gervacio Jr. took over as acting Ombudsman until Gutierrez was appointed as the new Ombudsman in December 2005.
Thus, Gutierrez started her seven-year term in December 2005 and this term expires not in seven months but in December 2012, De Jesus argued.
Earlier this month, former Senate President Jovito Salonga and 30 other civil society leaders filed an impeachment complaint against Gutierrez for betrayal of public trust and culpable violation of the Constitution for her alleged inaction in several corruption scandals involving officials and individuals close to Malacañang.
Escudero has just arrived from a four-day trip in Australia on the invitation of the Australian government. He sent his press statement from Canberra, where he met with Australian Prime Minister Kevin Rudd and other government officials to discuss labor, trade and migration issues between the two countries.
He asked Australian authorities to allow the entry of more health professionals and non-skilled workers displaced in other countries.
“We talked about the possibility of a government-to-government arrangement on labor migration at various levels,” he said in a press statement before returning to Manila.
He also met with Julia Gillard, deputy Prime Minister and minister for employment, education and workplace, and Sen. Chris Evans, minister of immigration.
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090312-193676/Ombudsmans-days-numbered
REPUBLIC OF THE PHILIPPINES vs. HON. DOMINGO IMPERIAL and HON. RODRIGO D. PEREZ, EN BANC, G.R. No. L-8684, March 31, 1955
SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS, NOW A CONSTITUTIONAL BODY. — The constitutional amendment establishing an independent Commission on Elections (Article X) became operative on December 2, 1940, superseding the purely statutory Commission previously created and organized along the same lines by Commonwealth Act No. 607.
2. ID.; ID.; REGULAR ROTATION OR CYCLE IN ITS MEMBERSHIP. — The provision that of the first three commissioners appointed "one shall hold office for 9 years, another for 6 years, and the third for 3 years," when taken together with the prescribed term of office for 9 years, without reappointment, evidences a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having subsequent members appointable only once every three years. This had already been indicated in previous opinions of the Supreme Court (Nacionalista Party vs. Angelo Bautista, 47 Off. Gaz., 2356; Nacionalista Party vs. Vera, 47 Off. Gaz., 2375), where it was declared that "with these periods it was the intention to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission" as a body for the impartiality and independence of such individual Commissioner's tenure was safeguarded by other provisions in the same Article X of the fundamental charter. Now, the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three commissioners should start on a common date, June 21, 1941; and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals between appointments would be destroyed, and the evident purpose of the rotation (to prevent that a four-year administration should appoint more than one permanent and regular commissioner) would be frustrated.
D E C I S I O N
REYES, J.B.L., J p:
This is a quo warranto proceeding instituted by the Solicitor General against Honorable Domingo Imperial and Honorable Rodrigo Perez, to test the legality of their continuance in office as Chairman and Member, respectively, of the Commission on Elections.
According to the Solicitor General, the first commissioners of Elections were duly appointed and qualified on July 12, 1945, with the following terms of office:
Hon. Jose Lopez Vito, Chairman, for 6 years, expiring on July 12, 1954
Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951
Hon. Vicente Vera, Member, for 3 years, expiring on July 12, 1948;
that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente de Vera was promoted Chairman by appointment dated May 26, 1947; that in accordance with the ruling of this Court in Nacionalista Party vs. Vera, 47 Off. Gaz., 2375, and Nacionalista Party vs. Felix Angelo Bautista, 47 Off. Gaz., 2356, the term of office of Chairman De Vera would have expired on July 12, 1954, that is, the date when the term of office of the first Chairman, Honorable Jose Lopez Vito, would have expired; that Chairman Vicente de Vera died in August, 1951, before the expiration of the maximum term of nine years (on July 12, 1954) of the first Chairman of the Commission; that on August 11, 1951, the respondent Honorable Domingo Imperial was appointed Chairman to succeed Honorable Vicente de Vera; that while the appointment of the respondent Honorable Imperial provided that he was to serve "for a term expiring July 12, 1960", the term for which he could legally serve as Chairman legally expired on July 12, 1954, that is, the expiration of the nine-year term for which the first Chairman, Honorable Jose Lopez Vito, was appointed; that the respondent Honorable Rodrigo Perez was appointed Member of the Commission on December 8, 1949, for "a term of nine years expiring on November 24, 1958", vice Honorable Francisco Enage, who was retired on November, 1949; that the term of office of respondent Perez legally expired on July 12, 1951, the expiration of the term of six years for which Commissioner Enage, his predecessor, was appointed. Wherefore, the Solicitor General concludes that the respondents Commissioners Imperial and Perez have ceased to have any legal or valid title to the positions of Chairman and Member, respectively, of the Commission on Elections, and that therefore, their positions should be declared vacant.
The respondents filed separate answer to the petition for quo warranto, both of which pray for the dismissal of the petition.
The defense of respondent Honorable Domingo Imperial is substantially that Honorable Jose Lopez Vito was first appointed Chairman of the Commission on Elections on May 12, 1941, for a term of nine years expiring on May 12, 1950; that when Commissioner Lopez Vito was again appointed Chairman on July 12, 1945, his nine-year, term of office under this second appointment should not be reckoned from the date thereof, that is, July 12, 1945, but from the date of his first appointment in 1941, so that the term under his second appointment expired on May 12, 1950; that respondent Imperial having been appointed after the expiration of Chairman Lopez Vito's full term of nine years in 1950, he (respondent Imperial) should serve office for a full term of nine years, ending only on August 10, 1960. Respondent Imperial stresses the unconstitutionality of Chairman Lopez Vito's second appointment to serve up to July 12, 1954, upon the ground that under the Constitution, he (Chairman Lopez Vito) could neither be appointed for more than nine years nor be allowed to succeed himself.
The other respondent, Honorable Rodrigo Perez, alleges that since Chairman Lopez Vito was the first to be appointed under the Constitution on May 13, 1941, the terms of office of all the Commissioners on Election should be reckoned from that date, May 13, 1941, to maintain the three-year difference between the dates of expiration of their respective terms as provided for by the Constitution; that the term of office of Member Francisco Enage (his predecessor) should therefore be considered as having started on May 13, 1941, and since Enage was appointed only for six years, his term of office expired on May 12, 1947; and that since respondent Perez was appointed (on December 8, 1949) after Commissioner Enage's six-year term of office had already expired, he should serve for a full term of nine years from the expiration of Enage's term of office on May 12, 1947; hence, his own term of office would expire only on May 12, 1956. Respondent Perez argues that if the computation of the Solicitor General were to be followed, that is, that Commissioner Enage's term be counted from July 12, 1945 ending on July 12, 1951, this term would end at a date very close to the expiration of Commissioner Lopez Vito's term on May 12, 1950, so there would be only a difference of fourteen months between the expiration of the terms of office of Commissioners Lopez Vito and Enage, a situation which is contrary to and violative of the Constitution that prescribes a difference of three years between the dates of the expiration of the terms of the Members of the Commission.
The issues now posed demand a re-examination and application of the Constitutional amendment establishing an independent Commission on Elections (Article X) that became operative on December 2, 1940, superseding the purely statutory Commission previously created and organized along the same lines by Commonwealth Act No. 607. While this Court already had occasion to make pronouncements on the matter in previous decisions, the same are not considered decisive in view of the divergence of opinions among the members of the Court at the time said decisions were rendered.
Section 1, paragraph 1, of Article X of the Constitution reads as follows:
"SEC. 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."
The provision that of the first three commissioners appointed, "one shall hold office for 9 years, another for 6 years, and the third for 3 years," when taken together with the prescribed term of office for 9 years, without reappointment, evidences a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having subsequent members appointable only once every three years, This had already been indicated in previous opinions of this Court (Nacionalista Party vs. Angelo Bautista, 1 47 Off. Gaz., 2356; Nacionalista Party vs. Vera, 2 47 Off. Gaz., 2375), where it was declared that "with these periods it was the intention to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission" as a body, we may add, for the impartiality and independence of each individual Commissioner's tenure was safeguarded by other provisions in the same Article X of the fundamental charter (removability by impeachment alone, and stability of compensation in sec. 1; disability to practice any profession and prohibition of conflicting interest in sec. 3).
That the rotation of the Commissioner's appointments at regular and fixed intervals of three years was a deliberate plan is shown by the history of the provision, and by selection of the fixed term of nine years for all subsequent appointees, since no other term would give such a result. Initiated under Commonwealth Act No. 607, the rotation plan was transferred without variation to the Constitution, evidently for the purpose of preserving it from hasty and irreflexive changes.
Now, the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three commissioners should start on a common date; and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals between appointments would be destroyed, and the evident purpose of the rotation (to prevent that a four-year administration should appoint more than one permanent and regular commissioner) would be frustrated.
While the general rule is that a public officer's death or other permanent disability creates a vacancy in the office, so that the successor is entitled to hold for a full term, such rule is recognized to suffer exception in those cases where the clear intention is to have vacancies appointments at regular intervals. Thus, in 43 Amer. prudence, sec. 159, p. 18, it is stated:
". . . In like manner, it has been ruled that the resignation or the removal of an officer during his term and the election or appointment of a successor do not divide the term or create a new and distinct one, and that in such a case the successor is filling out his predecessor's term. It seems the term of office of one elected or appointed to fill a vacancy in a board of several officers will be held to be for the unexpired term of his predecessor only, where the clear intent of the creating power is that the entire board should not go out of office at once, but that different groups should retire at regularly recurring intervals." (Italics supplied)
In State ex rel. Rylands vs. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 LRA 643, the Court, discussing provisions in the charter of the city of Bridgeport requiring two city Commissioners to serve for 2 years, and another two to serve for 4 years, said:
". . . The evident intent of section 50 is to secure to the city at all times, so far as possible, the services of commissioners, half of whom have had the benefit of at least a year's experience in office, and to divide the membership of each half equally between the leading political parties. Parmater vs. State, 102 Ind. 90, 93. Such a board had existed in Bridgeport since 1868. The charter of that year provided for the election of two commissioners to serve for one year, and two for two years, and for the annual election thereafter of two to serve for two years, and secured a nonpartisan character to the board by allowing no one to vote for more than two out of the four, and requiring the election of deputy commissioners to replace each elected commissioner in case of a vacancy. From that time until the resignation of the entire board, in December, 1890, its membership had been annually renewed by the appointment of two commissioners for a term of two years, each belonging to a different political party from the other. Were the contention of the defendant well founded, the successors of the four commissioners who resigned in December, 1890, should have been, and in law were, appointed each for two-year term, thus totally and forever frustrating the carefully devised scheme of alternating succession which had been followed for twenty years." (Cas. Cit., 22 LRA, 669)
The following cases also support the rule:
"When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring during such term of office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is prescribed by the Constitutional, yet the incumbent only holds until the time arrives for filling the office in the regular mode and at the regular time prescribed by the Constitution." (Simpson vs. Willard, 14 S. C. 191).
And in Baker vs. Kirk, 33 Ind. 517, it was held that the term of office of one appointed to fill a vacancy in one of three memberships of a board will, in the absence of any express provision therefore, be deemed to be for the unexpired term, where the statute fixes the first term at unequal lengths, so as to prevent an entire change of membership at any one time. In speaking of the reasoning to the contrary, the court said: "It would make the term of office to depend upon the pleasure or caprice of the incumbent, and not upon the will of the legislature as expressed in plain and undoubted language in the law. This construction would defeat the true intent and meaning of the legislature, 50 LRA. (N. S.), which was to prevent an entire change of the board of directors of the prison."
Other cases to the same effect are collated in the editorial note in State Ex. Rel. Fish vs. Howell, 50 L. R. A. (N. S.), 345.
The fact that the orderly rotation and renovation of Commissioners would be wrecked unless, in case of early vacancy, a successor should only be allowed to serve for the unexpired portion of each regular term, sufficiently explains why no express provision to that effect is made in Article X of the Constitution. The rule is so evidently fundamental and indispensable to the working of the plan that it became unnecessary to state it in so many words. The mere fact that such appointments would make the appointees serve for less than 9 years does not argue against reading such limitation into the constitution, because the nine-year term cannot be lifted out of context and independently of the provision limiting the terms of the terms of the first commissioners to nine, six and three years; and because in any event, the unexpired portion is still part and parcel of the preceding term, so that in filling the vacancy, only the tenure of the successor is shortened, but
not the term of office.
It may be that the appointing power has sufficient inducements at hand to create vacancies in the Commission, and find occasion for appointments thereto, whenever it chooses to do so. That possibility, however, would not in any way justify this Court in setting at naught the clear intention of the Constitution to have members of Commission appointed at regular 3-year intervals.
It is argued that under the rule, one may be appointed for a much shorter term than nine years, say one year or even less, and his independence would be thereby reduced. The point is, however, that the majority of the Commission would not be affected (slave in really exceptional cases) and independence of the majority is the independence of the whole Commission.
For the same reasons it must be admitted that the terms of the first three Commissioners should be held to have started at the same moment, irrespective of the variations in their dates of appointment and qualification, in order that the expiration of the first terms of nine, six and three years should lead to the regular recurrence of the three-year intervals between the expiration of the terms. Otherwise, the fulfillment and success of the carefully devised constitutional scheme would be made to depend upon the willingness of the appointing power to conform thereto.
It would be really immaterial whether the terms of the first Commissioners appointed under the Constitutional provision should be held to start from the approval of the constitutional amendment (December 2, 1940), the reorganization of the Commission under C. A. 657, on June 21, 1941, or from the appointment of the first Chairman, Honorable Jose Lopez Vito, on May 13, 1941. The point to be emphasized is that the terms of all three Commissioners appointed under the Constitution began at the same instant and that, in case of a belated appointment (like that of Commissioner Enage), the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. No other rule could satisfy the constitutional plan.
Of the three starting dates given above, we incline to prefer that of the organization of the constitutional Commission on Elections under Commonwealth Act 657, on June 21, 1941, since said act implemented and completed the organization of the Commission that under the Constitution "shall be" established. Certainly the terms can not begin from the first appointments, because appointment to a Constitution office is not only a right, but equally a duty that should not be shirked or delayed. On the basic tenets of our democratic institutions, it can hardly be conceded that the appointing power should possess discretion to retard compliance with its constitutional duty to appoint when delay would impede or frustrate the plain intent of the fundamental law. Ordinarily, the operation of the Constitution can not be made to depend upon the Legislature or the Executive, but in the present case the generality of the organizational lines under Article X seems to envisage prospective implementation.
Applying the foregoing rulings to the case at bar, we find that the terms of office of the first appointees under the constitution should be computed as follows:
Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June 20, 1950.
Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20, 1947.
The first 3 year term, from June 21, 1941 to June 20, 1944, was not filled.
Thereafter, since the first three-year term had already expired, the appointment (made on July 12, 1945) of the Honorable Vicente de Vera must be deemed for the full term of nine years, from June 21, 1944, to June 20, 1953.
The first vacancy occurred by expiration of the initial 6-year term of Commissioner Enage on June 21, 1937 (although he served as de facto Commissioner until 1949). His successor, respondent Rodrigo Perez, was named for a full nine-year term. However, on the principles heretofore laid, the nine-year term of Commissioner Perez (vice Enage) should be held to have started in June 21, 1947, to expire on June 20, 1956.
The second vacancy happened upon the death of Chairman Jose Lopez Vito, who died on May 7, 1947, more than two years before the expiration of his full term. To succeed him as Chairman, Commissioner Vicente de Vera was appointed. Such appointment, if at all valid, could legally be only for the unexpired period of the Lopez Vito's term, up to June 20, 1950.
To fill the vacancy created by Vera's assumption of the Chairmanship, Commissioner Leopoldo Rovira was appointed on May 22, 1947. Pursuant to the principles laid down, Rovira could only fill out the balance of Vera's term, until June 20, 1953, and could not be reappointed thereafter.
Commissioner Vera's tenure as Chairman (vice Lopez Vito) expired, as we have stated, on June 20, 1950, the end of Lopez Vito's original term. A vacancy, therefore, occurred on that date that Vera could no longer fill, since his reappointment was expressly prohibited by the Constitution. The next Chairman was respondent Commissioner Domingo Imperial, whose term of nine years must be deemed to have begun on June 21, 1950, to expire on June 20, 1959.
The vacancy created by the legal expiration of Rovira's term on June 20, 1953 appears unfilled up to the present. The time elapsed, as we have held, must be counted against his successor, whose legal term is for nine years, from June 21, 1953 to June 20, 1962.
The fact must be admitted that appointments have heretofore been made with little regard for the Constitutional plan. However, if the principles set in this decision are observed, no difficulty need be anticipated for the future.
And it appearing, from the foregoing, that the legal terms of office of the respondents Perez and Imperial have not as yet expired, whether the original terms started from the operation of the Constitutional amendments or the enactment of C. A. 657, the petition for quo warranto is hereby dismissed without costs.
Pablo, Bengzon, Montemayor, Jugo, Labrador, and Concepcion, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the opinion of Mr. Justice J. B. L Reyes except as to the prohibition on reappointment. I believe the prohibition applies only to those who have served a term of nine years.
BAUTISTA ANGELO, J., dissenting and concurring:
This case concerns the interpretation of the provision of the Constitution regarding the tenure of office of the members of the Commission on Elections who are appointed to succeed those first appointed in case they resign, retire, or die before the expiration of their term of office. The majority holds that the appointees can hold office only for the unexpired term even if their appointments run for a full term of nine years. With this I disagree.
The pertinent provision of the Constitution is contained in section 1, Article X, which reads:
"SECTION 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."
It would appear that the framers of the Constitution intended to give to the members of the Commission on Elections a term of office of nine years without reappointment. The only exception is with regard to the first appointees one of whom shall hold office for nine years, another for six years, and the third for three years. With regard to the latter, nothing is provided as to their reappointment which led some members of the Court to believe that they can be reappointed provided the whole tenure would not exceed nine years. The Constitution is likewise silent as to the manner any vacancy that may occur in the positions held by the members first appointed should be filled.
I fully agree with the theory that the purpose of providing for a difference of three years in the tenure of office of the members first appointed is to establish a cycle or rotation system to prevent a four-year administration from appointing more than one member not only to insure the continuity of the policy of the Commission on Elections but also to safeguard its independence and that of its members. This purpose is plausible if only it can be carried out to the letter, but experience has shown that it is impracticable and has never been observed either by the Chief Executive or by Congress. An analysis of the appointments heretofore made to fill vacancies in the membership of said Commission will bear this out. The Chief Executive in filling the vacancies in the positions held by the members first appointed have extended appointments for a term of nine years never for the unexpired period, and these appointments have always met the sanction of Congress.
This uninterrupted practice and contemporaneous construction placed on the above provision of the Constitution by the two branches of our Government, the executive and the legislative, cannot lightly be brushed aside because they are the constitutional agencies which have adopted that amendment to the Constitution and have implemented it having due regard for its provision of events. And such interpretation should be given due weight and recognition if we are to accord due respect to the principle of comity that should exists among the three branches of the Government.
"This official ruling of the executive officials is now entitled to consideration by the courts. Courts will and should respect the contemporaneous construction placed upon a statute by the executive officers whose duty it is to enforce it, and unless such interpretation is clearly erroneous will ordinarily be controlled thereby. (In re Allen (1903), 2 Phil., 630, following Penneyer vs. McConnaughy (1890), 140 U. S. 363, Government of Philippine Islands Ex. Rel. Municipality of Cardona vs. Municipality of Binangonan (1916), 34 Phil., 518)." (Molina vs. Rafferty, 37 Phil., 545, 555).
"At the same time, the contemporaneous construction of the law by two departments of the Government — one of the legislative branch responsible for its enactment, and the other the effective branch responsible for its enforcement — while not controlling on the Judiciary, is entitled to our respectful consideration. For the orderly and harmonious interpretation and advancement of the law, the courts should, when possible, keep step with the other departments." (Yra vs. Abaño, 52 Phil., 380, 384.)
"And it is a rule repeatedly followed by this court that the construction placed upon a law at a time by the officials in charge of enforcing it should be respected." (Guanio vs. Fernandez, 55 Phil., 814, 819.)
The above interpretation seems to be the most reasonable and more in line with the letter and spirit of the Constitution. The purpose is to establish "an independent Commission on Elections" and it was thought the best way it could be accomplished is to give to its members a term of office of nine (9) years in the hope that this would give them that feeling of security which would make them impartial in the performance of their functions. The provision regarding the cycle or rotation system in the appointments of the members first appointed is a further safeguard to promote such independence but if that cycle cannot be maintained because of unavoidable human factors that may supervene, that should not be allowed to stand against the above purpose of giving to every subsequent appointee a term of office of nine (9) years. The former should give way to the latter.
The theory that, merely to maintain the cycle at any cost, if a vacancy occurs in the office of the members first appointed, the new appointee can only be appointed for the unexpired term, would defeat the independence of the poll body rather than promote it, for the new appointees would be holding their positions without that feeling of security that would guarantee their independence as they would be angling for a reappointment or for other plums in the government service. Moreover, such interpretation would run counter to the well- known rule that where only the length of the tern is fixed by the Constitution and neither the commencement non termination is prescribed, or nothing is provided regarding the filling of the unexpired term, the subsequent appointee, holds the office for full term, and not merely for the unexpired portion. And our Constitution comes within the purview of this rule.
"When merely the length of the term is fixed, without reference to an unexpired term, or to a vacancy in the term of office, as distinguished from a vacancy in the office itself, it is held in some cases that on the happening of a vacancy the office reverts to the people or sovereign and when again vested it is not for the unexpired term, but for the full term. This rule, in the absence of constitutional or statutory provisions regulating the filling of vacancies, has been applied in the ease of elective officers where the law provides that they shall be elected for a term of a specified number of years." (67 C. J. S., 216.)
"On the other hand where no time is fixed for the beginning or end of the period during which a public office is to be occupied, and the duration of such period is alone designated, the contrary conclusion is reached, and a person selected to fill a vacancy in such office may serve the full term and not merely the unexpired balance of the prior incumbent's term. This is true especially where no authority exists in the legislature for fixing the beginning or the ending of the term, or where such authority rests in the legislature, and the legislature has not exercised it. The reason for this rule is that when a vacancy happens by death, resignation, or removal, the term is gone and the office reverts, as it did at common law to the crown, to be again filled on like condition, for the full term prescribed." (22 R. C. L., 553)
Why is it that the Constitution does not contain any provision relative to the filling of any vacancy in the office held by the members first appointed? The answer is simple: the first sentence of section 1, Article X already provides that future appointments should be made for a term of nine (9) years. If the intention were otherwise, the framers of the Constitution would have inserted therein a proviso similar to that covering vacancies in the office of senators or representatives wherein it was clearly directed that the new incumbent shall only serve for the unexpired term (Section 8, (2) Article VI, Constitution).
If this theory is entertained it follows that respondent Domingo Imperial, who was appointed on August 11, 1951 for a term of nine (9) years ending on July 12, 1960, and respondent Rodrigo D. Perez who was appointed on November 8, 1949, for a term of nine (9) years ending on November 24, 1958, are still entitled to their positions, and, therefore, the present petition for quo warranto should be dismissed.
As this is the conclusion reached by the majority opinion, I concur in the result.
Paras, C. J., and Reyes, A., J., concur.