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THIRD DIVISION

[ G.R. No. 187226, January 28, 2015 ]

CHERYLL SANTOS LEUS, PETITIONER, VS. ST. SCHOLASTICA'S

COLLEGE WESTGROVE AND/OR SR. EDNA QUIAMBAO, OSB,
RESPONDENTS.

DECISION

REYES, J.:
Cheryll Santos Leus (petitioner) was hired by St. Scholastica's College
Westgrove (SSCW), a Catholic educational institution, as a non-teaching
personnel, engaged in pre-marital sexual relations, got pregnant out of
wedlock, married the father of her child, and was dismissed by SSCW, in
that order. The question that has to be resolved is whether the petitioner's
conduct constitutes a ground for her dismissal.

Before this Court is a petition for review on certiorari under Rule 45 of the
Rules of Court seeking to annul and set aside the Decision[1]dated
September 24, 2008 and Resolution[2] dated March 2, 2009 issued by the
Court of Appeals (CA) in CA-G.R. SP No. 100188, which affirmed the
Resolutions dated February 28, 2007[3] and May 21, 2007[4] of the National
Labor Relations Commission (NLRC) in NLRC CA No. 049222-06.
 The Facts

SSCW is a catholic and sectarian educational institution in Silang, Cavite.

In May 2001, SSCW hired the petitioner as an Assistant to SSCW's Director
of the Lay Apostolate and Community Outreach Directorate.

Sometime in 2003, the petitioner and her boyfriend conceived a child out of
wedlock. When SSCW learned of the petitioner's pregnancy, Sr. Edna
Quiambao (Sr. Quiambao), SSCW's Directress, advised her to file a
resignation letter effective June 1, 2003. In response, the petitioner
informed Sr. Quiambao that she would not resign from her employment
just because she got pregnant without the benefit of marriage.[5]

On May 28, 2003, Sr. Quiambao formally directed the petitioner to explain
in writing why she should not be dismissed for engaging in pre-marital
sexual relations and getting pregnant as a result thereof, which amounts to
serious misconduct and conduct unbecoming of an employee of a Catholic
school.[6]

In a letter[7] dated May 31, 2003, the petitioner explained that her
pregnancy out of wedlock does not amount to serious misconduct or
conduct unbecoming of an employee. She averred that she is unaware of
any school policy stating that being pregnant out of wedlock is considered
as a serious misconduct and, thus, a ground for dismissal. Further, the
petitioner requested a copy of SSCW's policy and guidelines so that she may
better respond to the charge against her.

On June 2, 2003, Sr. Quiambao informed the petitioner that, pending the
promulgation of a "Support Staff Handbook," SSCW follows the 1992
Manual of Regulations for Private Schools (1992 MRPS) on the causes for
termination of employments; that Section 94(e) of the 1992 MRPS cites
"disgraceful or immoral conduct" as a ground for dismissal in addition to
the just causes for termination of employment provided under Article 282
of the Labor Code.[8]

On June 4, 2003, the petitioner, through counsel, sent Sr. Quiambao a

letter,[9] which, in part, reads:
To us, pre-marital sex between two consenting adults without legal
impediment to marry each other who later on married each other does not
fall within the contemplation of "disgraceful or immoral conduct" and
"serious misconduct" of the Manual of Regulations for Private Schools and
the Labor Code of the Philippines.

Your argument that what happened to our client would set a bad example
to the students and other employees of your school is speculative and is
more imaginary than real. To dismiss her on that sole ground constitutes
grave abuse of management prerogatives.

Considering her untarnished service for two years, dismissing her with her
present condition would also mean depriving her to be more secure in
terms of financial capacity to sustain maternal needs.[10]

In a letter[11] dated June 6, 2003, SSCW, through counsel, maintained that

pre-marital sexual relations, even if between two consenting adults without
legal impediment to marry, is considered a disgraceful and immoral
conduct or a serious misconduct, which are grounds for the termination of
employment under the 1992 MRPS and the Labor Code. That SSCW, as a
Catholic institution of learning, has the right to uphold the teaching of the
Catholic Church and expect its employees to abide by the same. They
further asserted that the petitioner's indiscretion is further aggravated by
the fact that she is the Assistant to the Director of the Lay Apostolate and
Community Outreach Directorate, a position of responsibility that the
students look up to as role model. The petitioner was again directed to
submit a written explanation on why she should not be dismissed.

On June 9, 2003, the petitioner informed Sr. Quiambao that she adopts her
counsel's letter dated June 4, 2003 as her written explanation.[12]

Consequently, in her letter[13] dated June 11, 2003, Sr. Quiambao informed
the petitioner that her employment with SSCW is terminated on the ground
of serious misconduct. She stressed that pre-marital sexual relations
between two consenting adults with no impediment to marry, even if they
subsequently married, amounts to immoral conduct. She further pointed
out that SSCW finds unacceptable the scandal brought about by the
petitioner's pregnancy out of wedlock as it ran counter to the moral
principles that SSCW stands for and teaches its students.
Thereupon, the petitioner filed a complaint for illegal dismissal with the
Regional Arbitration Branch of the NLRC in Quezon City against SSCW and
Sr. Quiambao (respondents). In her position paper,[14] the petitioner
claimed that SSCW gravely abused its management prerogative as there
was no just cause for her dismissal. She maintained that her pregnancy out
of wedlock cannot be considered as serious misconduct since the same is a
purely private affair and not connected in any way with her duties as an
employee of SSCW. Further, the petitioner averred that she and her
boyfriend eventually got married even prior to her dismissal.

For their part, SSCW claimed that there was just cause to terminate the
petitioner's employment with SSCW and that the same is a valid exercise of
SSCW's management prerogative. They maintained that engaging in pre-
marital sex, and getting pregnant as a result thereof, amounts to a
disgraceful or immoral conduct, which is a ground for the dismissal of an
employee under the 1992 MRPS.

They pointed out that SSCW is a Catholic educational institution, which

caters exclusively to young girls; that SSCW would lose its credibility if it
would maintain employees who do not live up to the values and teachings it
inculcates to its students. SSCW further asserted that the petitioner, being
an employee of a Catholic educational institution, should have strived to
maintain the honor, dignity and reputation of SSCW as a Catholic school.[15]

The Ruling of the Labor Arbiter

On February 28, 2006, the Labor Arbiter (LA) rendered a Decision,[16] in

NLRC Case No. 6-17657-03-C which dismissed the complaint filed by the
petitioner. The LA found that there was a valid ground for the petitioner's
dismissal; that her pregnancy out of wedlock is considered as a "disgraceful
and immoral conduct." The LA pointed out that, as an employee of a
Catholic educational institution, the petitioner is expected to live up to the
Catholic values taught by SSCW to its students. Likewise, the LA opined
that:

Further, a deep analysis of the facts would lead us to disagree with the
complainant that she was dismissed simply because she violate[d] a
Catholic [teaching]. It should not be taken in isolation but rather it should
be analyzed in the light of the surrounding circumstances as a whole. We
must also take into [consideration] the nature of her work and the nature of
her employer-school. For us, it is not just an ordinary violation. It was
committed by the complainant in an environment where her strict
adherence to the same is called for and where the reputation of the school is
at stake. x x x.[17]

The LA further held that teachers and school employees, both in their
official and personal conduct, must display exemplary behavior and act in a
manner that is beyond reproach.

The petitioner appealed to the NLRC, insisting that there was no valid
ground for the termination of her employment. She maintained that her
pregnancy out of wedlock cannot be considered as "serious misconduct"
under Article 282 of the Labor Code since the same was not of such a grave
and aggravated character. She asserted that SSCW did not present any
evidence to establish that her pregnancy out of wedlock indeed eroded the
moral principles that it teaches its students.[18]

The Ruling of the NLRC

On February 28, 2007, the NLRC issued a Resolution,[19] which affirmed

the LA Decision dated February 28, 2006. The NLRC pointed out that the
termination of the employment of the personnel of private schools is
governed by the 1992 MRPS; that Section 94(e) thereof cites "disgraceful or
immoral conduct" as a just cause for dismissal, in addition to the grounds
for termination of employment provided for under Article 282 of the Labor
Code. The NLRC held that the petitioner's pregnancy out of wedlock is a
"disgraceful or immoral conduct" within the contemplation of Section 94(e)
of the 1992 MRPS and, thus, SSCW had a valid reason to terminate her
employment.

The petitioner sought reconsideration[20] of the Resolution dated February

28, 2007 but it was denied by the NLRC in its Resolution[21]dated May 21,
2007.

Unperturbed, the petitioner filed a petition[22] for certiorari with the CA,
alleging that the NLRC gravely abused its discretion in ruling that there was
a valid ground for her dismissal. She maintained that pregnancy out of
wedlock cannot be considered as a disgraceful or immoral conduct; that
SSCW failed to prove that its students were indeed gravely scandalized by
her pregnancy out of wedlock. She likewise asserted that the NLRC erred in
applying Section 94(e) of the 1992 MRPS.

The Ruling of the CA

On September 24, 2008, the CA rendered the herein assailed

Decision,[23] which denied the petition for certiorari filed by the petitioner.
The CA held that it is the provisions of the 1992 MRPS and not the Labor
Code which governs the termination of employment of teaching and non-
teaching personnel of private schools, explaining that:

It is a principle of statutory construction that where there are two statutes

that apply to a particular case, that which was specially intended for the
said case must prevail. Petitioner was employed by respondent private
Catholic institution which undeniably follows the precepts or norms of
conduct set forth by the Catholic Church. Accordingly, the Manual of
Regulations for Private Schools followed by it must prevail over the Labor
Code, a general statute. The Manual constitutes the private schools'
Implementing Rules and Regulations of Batas Pambansa Blg. 232 or the
Education Act of 1982. x x x.[24]

The CA further held that the petitioner's dismissal was a valid exercise of
SSCW's management prerogative to discipline and impose penalties on
erring employees pursuant to its policies, rules and regulations. The CA
upheld the NLRC's conclusion that the petitioner's pregnancy out of
wedlock is considered as a "disgraceful and immoral conduct" and, thus, a
ground for dismissal under Section 94(e) of the 1992 MRPS. The CA
likewise opined that the petitioner's pregnancy out of wedlock is scandalous
per se given the work environment and social milieu that she was in, viz:

Under Section 94 (e) of the [MRPS], and even under Article 282 (serious
misconduct) of the Labor Code, "disgraceful and immoral conduct" is a
basis for termination of employment.

xxxx
Petitioner contends that her pre-marital sexual relations with her boyfriend
and her pregnancy prior to marriage was not disgraceful or immoral
conduct sufficient for her dismissal because she was not a member of the
school's faculty and there is no evidence that her pregnancy scandalized the
school community.

We are not persuaded. Petitioner's pregnancy prior to marriage is

scandalous in itself given the work environment and social milieu she was
in. Respondent school for young ladies precisely seeks to prevent its
students from situations like this, inculcating in them strict moral values
and standards. Being part of the institution, petitioner's private and public
life could not be separated. Her admitted pre-marital sexual relations was a
violation of private respondent's prescribed standards of conduct that views
pre-marital sex as immoral because sex between a man and a woman must
only take place within the bounds of marriage.

Finally, petitioner's dismissal is a valid exercise of the employer-school's

management prerogative to discipline and impose penalties on erring
employees pursuant to its policies, rules and regulations. x x x.[25] (Citations
omitted)

The petitioner moved for reconsideration[26] but it was denied by the CA in

its Resolution[27] dated March 2, 2009.

Hence, the instant petition.

Issues

Essentially, the issues set forth by the petitioner for this Court's decision
are the following: first, whether the CA committed reversible error in ruling
that it is the 1992 MRPS and not the Labor Code that governs the
termination of employment of teaching and non-teaching personnel of
private schools; and second, whether the petitioner's pregnancy out of
wedlock constitutes a valid ground to terminate her employment.

The Ruling of the Court

The Court grants the petition.

First Issue: Applicability of the 1992 MRPS

The petitioner contends that the CA, in ruling that there was a valid ground
to dismiss her, erred in applying Section 94 of the 1992 MRPS. Essentially,
she claims that the 1992 MRPS was issued by the Secretary of Education as
the revised implementing rules and regulations of Batas Pambansa Bilang
232 (BP 232) or the "Education Act of 1982." That there is no provision in
BP 232, which provides for the grounds for the termination of employment
of teaching and non-teaching personnel of private schools. Thus, Section 94
of the 1992 MRPS, which provides for the causes of terminating an
employment, is invalid as it "widened the scope and coverage" of BP 232.

The Court does not agree.

The Court notes that the argument against the validity of the 1992 MRPS,
specifically Section 94 thereof, is raised by the petitioner for the first time
in the instant petition for review. Nowhere in the proceedings before the
LA, the NLRC or the CA did the petitioner assail the validity of the
provisions of the 1992 MRPS.

"It is well established that issues raised for the first time on appeal and not
raised in the proceedings in the lower court are barred by estoppel. Points
of law, theories, issues, and arguments not brought to the attention of the
trial court ought not to be considered by a reviewing court, as these cannot
be raised for the first time on appeal. To consider the alleged facts and
arguments belatedly raised would amount to trampling on the basic
principles of fair play, justice, and due process."[28]

In any case, even if the Court were to disregard the petitioner's belated
claim of the invalidity of the 1992 MRPS, the Court still finds the same
untenable.

The 1992 MRPS, the regulation in force at the time of the instant
controversy, was issued by the Secretary of Education pursuant to BP 232.
Section 70[29] of BP 232 vests the Secretary of Education with the authority
to issue rules and regulations to implement the provisions of BP 232.
Concomitantly, Section 57[30] specifically empowers the Department of
Education to promulgate rules and regulations necessary for the
administration, supervision and regulation of the educational system in
accordance with the declared policy of BP 232.

The qualifications of teaching and non-teaching personnel of private

schools, as well as the causes for the termination of their employment, are
an integral aspect of the educational system of private schools. Indubitably,
ensuring that the teaching and non-teaching personnel of private schools
are not only qualified, but competent and efficient as well goes hand in
hand with the declared objective of BP 232 establishing and maintaining
relevant quality education.[31] It is thus within the authority of the Secretary
of Education to issue a rule, which provides for the dismissal of teaching
and non-teaching personnel of private schools based on their
incompetence, inefficiency, or some other disqualification.

Moreover, Section 69 of BP 232 specifically authorizes the Secretary of

Education to "prescribe and impose such administrative sanction as he may
deem reasonable and appropriate in the implementing rules and
regulations" for the "[g]ross inefficiency of the teaching or non-teaching
personnel" of private schools.[32] Accordingly, contrary to the petitioner's
claim, the Court sees no reason to invalidate the provisions of the 1992
MRPS, specifically Section 94 thereof.

Second Issue: Validity of the Petitioner's Dismissal

The validity of the petitioner's dismissal hinges on the determination of

whether pregnancy out of wedlock by an employee of a catholic educational
institution is a cause for the termination of her employment.

In resolving the foregoing question, the Court will assess the matter from a
strictly neutral and secular point of view the relationship between SSCW as
employer and the petitioner as an employee, the causes provided for by law
in the termination of such relationship, and the evidence on record. The
ground cited for the petitioner's dismissal, i.e., pre-marital sexual relations
and, consequently, pregnancy out of wedlock, will be assessed as to whether
the same constitutes a valid ground for dismissal pursuant to Section 94(e)
of the 1992 MRPS.
The standard of review in a Rule 45
petition from the CA decision in labor
cases.

In a petition for review under Rule 45 of the Rules of Court, such as the
instant petition, where the CA's disposition in a labor case is sought to be
calibrated, the Court's review is quite limited. In ruling for legal
correctness, the Court has to view the CA decision in the same context that
the petition for certiorari it ruled upon was presented to it; the Court has to
examine the CA decision from the prism of whether it correctly determined
the presence or absence of grave abuse of discretion in the NLRC decision
before it, not on the basis of whether the NLRC decision on the merits of
the case was correct.[33]

The phrase "grave abuse of discretion" is well-defined in the Court's

jurisprudence. It exists where an act of a court or tribunal is performed
with a capricious or whimsical exercise of judgment equivalent to lack of
jurisdiction.[34] The determination of the presence or absence of grave
abuse of discretion does not include an inquiry into the correctness of the
evaluation of evidence, which was the basis of the labor agency in reaching
its conclusion.[35]

Nevertheless, while a certiorari proceeding does not strictly include an

inquiry as to the correctness of the evaluation of evidence (that was the
basis of the labor tribunals in determining their conclusion), the
incorrectness of its evidentiary evaluation should not result in negating the
requirement of substantial evidence. Indeed, when there is a showing
that the findings or conclusions, drawn from the same pieces of
evidence, were arrived at arbitrarily or in disregard of the
evidence on record, they may be reviewed by the courts. In
particular, the CA can grant the petition for certiorari if it finds that the
NLRC, in its assailed decision or resolution, made a factual finding not
supported by substantial evidence. A decision that is not supported by
substantial evidence is definitely a decision tainted with grave abuse of
discretion.[36]

The labor tribunals' respective

conclusions that the petitioner's pregnancy
is a "disgraceful or immoral conduct"
were arrived at arbitrarily.
The CA and the labor tribunals affirmed the validity of the petitioner's
dismissal pursuant to Section 94(e) of the 1992 MRPS, which provides that:

Sec. 94. Causes of Terminating Employment In addition to the just causes

enumerated in the Labor Code, the employment of school personnel,
including faculty, may be terminated for any of the following causes:

xxxx

e. Disgraceful or immoral conduct;

xxxx

The labor tribunals concluded that the petitioner's pregnancy out of

wedlock, per se, is "disgraceful and immoral" considering that she is
employed in a Catholic educational institution. In arriving at such
conclusion, the labor tribunals merely assessed the fact of the petitioner's
pregnancy vis-à-vis the totality of the circumstances surrounding the same.

However, the Court finds no substantial evidence to support the

aforementioned conclusion arrived at by the labor tribunals. The fact of the
petitioner's pregnancy out of wedlock, without more, is not enough to
characterize the petitioner's conduct as disgraceful or immoral. There must
be substantial evidence to establish that pre-marital sexual relations and,
consequently, pregnancy out of wedlock, are indeed considered disgraceful
or immoral.

The totality of the circumstances

surrounding the conduct alleged to be
disgraceful or immoral must be assessed
against the prevailing norms of conduct.

In Chua-Qua v. Clave,[37] the Court stressed that to constitute immorality,

the circumstances of each particular case must be holistically considered
and evaluated in light of the prevailing norms of conduct and
applicable laws.[38] Otherwise stated, it is not the totality of the
circumstances surrounding the conduct per se that determines whether the
same is disgraceful or immoral, but the conduct that is generally accepted
by society as respectable or moral. If the conduct does not conform to what
society generally views as respectable or moral, then the conduct is
considered as disgraceful or immoral. Tersely put, substantial evidence
must be presented, which would establish that a particular conduct, viewed
in light of the prevailing norms of conduct, is considered disgraceful or
immoral.

Thus, the determination of whether a conduct is disgraceful or immoral

involves a two-step process: first, a consideration of the totality of the
circumstances surrounding the conduct; and second, an assessment of the
said circumstances vis-à-vis the prevailing norms of conduct, i.e., what the
society generally considers moral and respectable.

That the petitioner was employed by a Catholic educational institution per

se does not absolutely determine whether her pregnancy out of wedlock is
disgraceful or immoral. There is still a necessity to determine whether the
petitioner's pregnancy out of wedlock is considered disgraceful or immoral
in accordance with the prevailing norms of conduct.

Public and secular morality should

determine the prevailing norms of conduct,
not religious morality.

However, determining what the prevailing norms of conduct are considered

disgraceful or immoral is not an easy task. An individual's perception of
what is moral or respectable is a confluence of a myriad of influences, such
as religion, family, social status, and a cacophony of others. In this regard,
the Court's ratiocination in Estrada v. Escritor[39] is instructive.

In Estrada, an administrative case against a court interpreter charged with

disgraceful and immoral conduct, the Court stressed that in determining
whether a particular conduct can be considered as disgraceful and immoral,
the distinction between public and secular morality on the one hand, and
religious morality, on the other, should be kept in mind.[40] That the
distinction between public and secular morality and religious morality is
important because the jurisdiction of the Court extends only to public and
secular morality.[41]The Court further explained that:
The morality referred to in the law is public and necessarily
secular, not religious x x x. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve
or endorse that belief and thereby also tacitly disapprove contrary religious
or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or
even make it appear that those whose beliefs are disapproved are second-
class citizens. Expansive religious freedom therefore requires that
government be neutral in matters of religion; governmental reliance upon
religious justification is inconsistent with this policy of neutrality.

In other words, government action, including its proscription of

immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a
moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes
with a compelling influence on them; the human mind endeavors to
regulate the temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven. Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest
roots, but it must have an articulable and discernible secular
purpose and justification to pass scrutiny of the religion clauses.
x x x.[42] (Citations omitted and emphases ours)

Accordingly, when the law speaks of immoral or, necessarily, disgraceful

conduct, it pertains to public and secular morality; it refers to those
conducts which are proscribed because they are detrimental to
conditions upon which depend the existence and progress of
human society. Thus, in Anonymous v. Radam,[43] an administrative case
involving a court utility worker likewise charged with disgraceful and
immoral conduct, applying the doctrines laid down in Estrada, the Court
held that:

For a particular conduct to constitute "disgraceful and immoral"

behavior under civil service laws, it must be regulated on
account of the concerns of public and secular morality. It cannot
be judged based on personal bias, specifically those colored by
particular mores. Nor should it be grounded on "cultural" values
not convincingly demonstrated to have been recognized in the
realm of public policy expressed in the Constitution and the laws.
At the same time, the constitutionally guaranteed rights (such as the right
to privacy) should be observed to the extent that they protect behavior that
may be frowned upon by the majority.

Under these tests, two things may be concluded from the fact that an
unmarried woman gives birth out of wedlock:

if the father of the child is himself unmarried, the woman

is not ordinarily administratively liable for disgraceful
and immoral conduct. It may be a not-so-ideal situation and
may cause complications for both mother and child but it does not
give cause for administrative sanction. There is no law which
penalizes an unmarried mother under those
(1)
circumstances by reason of her sexual conduct or
proscribes the consensual sexual activity between two
unmarried persons. Neither does the situation contravene
any fundamental state policy as expressed in the
Constitution, a document that accommodates various
belief systems irrespective of dogmatic origins.
if the father of the child born out of wedlock is himself
married to a woman other than the mother, then there is a
cause for administrative sanction against either the father
(2)
or the mother. In such a case, the "disgraceful and
immoral conduct" consists of having extramarital
relations with a married person. The sanctity of marriage is
 constitutionally recognized and likewise affirmed by our statutes as
a special contract of permanent union. Accordingly, judicial
employees have been sanctioned for their dalliances with married
persons or for their own betrayals of the marital vow of fidelity.

In this case, it was not disputed that, like respondent, the father of her child
was unmarried. Therefore, respondent cannot be held liable for disgraceful
and immoral conduct simply because she gave birth to the child Christian
Jeon out of wedlock.[44] (Citations omitted and emphases ours)

Both Estrada and Radam are administrative cases against employees in the
civil service. The Court, however, sees no reason not to apply the doctrines
enunciated in Estrada and Radam in the instant
case. Estrada and Radam also required the Court to delineate what
conducts are considered disgraceful and/or immoral as would constitute a
ground for dismissal. More importantly, as in the said administrative cases,
the instant case involves an employee's security of tenure; this case likewise
concerns employment, which is not merely a specie of property right, but
also the means by which the employee and those who depend on him
live.[45]

It bears stressing that the right of an employee to security of tenure is

protected by the Constitution. Perfunctorily, a regular employee may not be
dismissed unless for cause provided under the Labor Code and other
relevant laws, in this case, the 1992 MRPS. As stated above, when the law
refers to morality, it necessarily pertains to public and secular morality and
not religious morality. Thus, the proscription against "disgraceful or
immoral conduct" under Section 94(e) of the 1992 MRPS, which is made as
a cause for dismissal, must necessarily refer to public and secular morality.
Accordingly, in order for a conduct to be considered as disgraceful or
immoral, it must be "'detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society' and not because
the conduct is proscribed by the beliefs of one religion or the other."

Thus, in Santos v. NLRC,[46] the Court upheld the dismissal of a teacher

who had an extra-marital affair with his co-teacher, who is likewise
married, on the ground of disgraceful and immoral conduct under Section
94(e) of the 1992 MRPS. The Court pointed out that extra-marital affair is
considered as a disgraceful and immoral conduct is an afront to the sanctity
of marriage, which is a basic institution of society, viz:
We cannot overemphasize that having an extra-marital affair is an afront to
the sanctity of marriage, which is a basic institution of society. Even our
Family Code provides that husband and wife must live together, observe
mutual love, respect and fidelity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the
family. Our laws, in implementing this constitutional edict on marriage and
the family underscore their permanence, inviolability and solidarity.[47]

The petitioner's pregnancy out of

wedlock is not a disgraceful or immoral
conduct since she and the father of her
child have no impediment to marry each
other.

In stark contrast to Santos, the Court does not find any circumstance in this
case which would lead the Court to conclude that the petitioner committed
a disgraceful or immoral conduct. It bears stressing that the petitioner and
her boyfriend, at the time they conceived a child, had no legal impediment
to marry. Indeed, even prior to her dismissal, the petitioner married her
boyfriend, the father of her child. As the Court held in Radam, there is no
law which penalizes an unmarried mother by reason of her sexual conduct
or proscribes the consensual sexual activity between two unmarried
persons; that neither does such situation contravene any fundamental state
policy enshrined in the Constitution.

Admittedly, the petitioner is employed in an educational institution where

the teachings and doctrines of the Catholic Church, including that on pre-
marital sexual relations, is strictly upheld and taught to the students. That
her indiscretion, which resulted in her pregnancy out of wedlock, is
anathema to the doctrines of the Catholic Church. However, viewed against
the prevailing norms of conduct, the petitioner's conduct cannot be
considered as disgraceful or immoral; such conduct is not denounced by
public and secular morality. It may be an unusual arrangement, but it
certainly is not disgraceful or immoral within the contemplation of the law.

To stress, pre-marital sexual relations between two consenting adults who

have no impediment to marry each other, and, consequently, conceiving a
child out of wedlock, gauged from a purely public and secular view of
morality, does not amount to a disgraceful or immoral conduct under
Section 94(e) of the 1992 MRPS.

Accordingly, the labor tribunals erred in upholding the validity of the

petitioner's dismissal. The labor tribunals arbitrarily relied solely on the
circumstances surrounding the petitioner's pregnancy and its supposed
effect on SSCW and its students without evaluating whether the petitioner's
conduct is indeed considered disgraceful or immoral in view of the
prevailing norms of conduct. In this regard, the labor tribunals' respective
haphazard evaluation of the evidence amounts to grave abuse of discretion,
which the Court will rectify.

The labor tribunals' finding that the petitioner's pregnancy out of wedlock
despite the absence of substantial evidence is not only arbitrary, but a grave
abuse of discretion, which should have been set right by the CA.

There is no substantial evidence to

prove that the petitioner's pregnancy out of
wedlock caused grave scandal to SSCW
and its students.

SSCW claimed that the petitioner was primarily dismissed because her
pregnancy out of wedlock caused grave scandal to SSCW and its students.
That the scandal brought about by the petitioner's indiscretion prompted
them to dismiss her. The LA upheld the respondents' claim, stating that:

In this particular case, an "objective" and "rational evaluation" of the facts

and circumstances obtaining in this case would lead us to focus our
attention x x x on the impact of the act committed by the
complainant. The act of the complainant x x x eroded the moral
principles being taught and project[ed] by the respondent
[C]atholic school to their young lady students.[48] (Emphasis in the
original)

On the other hand, the NLRC opined that:

In the instant case, when the complainant-appellant was already conceiving

a child even before she got married, such is considered a shameful and
scandalous behavior, inimical to public welfare and policy. It eroded the
moral doctrines which the respondent Catholic school, an
exclusive school for girls, is teaching the young girls. Thus, when
the respondent-appellee school terminated complainant-
appellant's services, it was a valid exercise of its management
prerogative. Whether or not she was a teacher is of no moment. There is
no separate set of rules for non-teaching personnel. Respondents-appellees
uphold the teachings of the Catholic Church on pre-marital sex and that the
complainant-appellant as an employee of the school was expected to abide
by this basic principle and to live up with the standards of their purely
Catholic values. Her subsequent marriage did not take away the fact that
she had engaged in pre-marital sex which the respondent-appellee school
denounces as the same is opposed to the teachings and doctrines it
espouses.[49] (Emphasis ours)

Contrary to the labor tribunals' declarations, the Court finds that SSCW
failed to adduce substantial evidence to prove that the petitioner's
indiscretion indeed caused grave scandal to SSCW and its students. Other
than the SSCW's bare allegation, the records are bereft of any evidence that
would convincingly prove that the petitioner's conduct indeed adversely
affected SSCW's integrity in teaching the moral doctrines, which it stands
for. The petitioner is only a non-teaching personnel; her interaction with
SSCW's students is very limited. It is thus quite impossible that her
pregnancy out of wedlock caused such a grave scandal, as claimed by
SSCW, as to warrant her dismissal.

Settled is the rule that in termination cases, the burden of proving that the
dismissal of the employees was for a valid and authorized cause rests on the
employer. It is incumbent upon the employer to show by substantial
evidence that the termination of the employment of the employees was
validly made and failure to discharge that duty would mean that the
dismissal is not justified and therefore illegal.[50]"Substantial evidence is
more than a mere scintilla of evidence. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if
other minds equally reasonable might conceivably opine otherwise."[51]

Indubitably, bare allegations do not amount to substantial evidence.

Considering that the respondents failed to adduce substantial evidence to
prove their asserted cause for the petitioner's dismissal, the labor tribunals
should not have upheld their allegations hook, line and sinker. The labor
tribunals' respective findings, which were arrived at sans any substantial
evidence, amounts to a grave abuse of discretion, which the CA should have
rectified. "Security of tenure is a right which may not be denied on mere
speculation of any unclear and nebulous basis."[52]

The petitioner's dismissal is not a

valid exercise of SSCW's management
prerogative.

The CA belabored the management prerogative of SSCW to discipline its

employees. The CA opined that the petitioner's dismissal is a valid exercise
of management prerogative to impose penalties on erring employees
pursuant to its policies, rules and regulations.

The Court does not agree.

The Court has held that "management is free to regulate, according to its
own discretion and judgment, all aspects of employment, including hiring,
work assignments, working methods, time, place and manner of work,
processes to be followed, supervision of workers, working regulations,
transfer of employees, work supervision, lay off of workers and discipline,
dismissal and recall of workers. The exercise of management prerogative,
however, is not absolute as it must be exercised in good faith and with due
regard to the rights of labor." Management cannot exercise its prerogative
in a cruel, repressive, or despotic manner.[53]

SSCW, as employer, undeniably has the right to discipline its employees

and, if need be, dismiss them if there is a valid cause to do so. However, as
already explained, there is no cause to dismiss the petitioner. Her conduct
is not considered by law as disgraceful or immoral. Further, the
respondents themselves have admitted that SSCW, at the time of the
controversy, does not have any policy or rule against an employee who
engages in pre-marital sexual relations and conceives a child as a result
thereof. There being no valid basis in law or even in SSCW's policy and
rules, SSCW's dismissal of the petitioner is despotic and arbitrary and, thus,
not a valid exercise of management prerogative.

In sum, the Court finds that the petitioner was illegally dismissed as there
was no just cause for the termination of her employment. SSCW failed to
adduce substantial evidence to establish that the petitioner's conduct, i.e.,
engaging in pre-marital sexual relations and conceiving a child out of
wedlock, assessed in light of the prevailing norms of conduct, is considered
disgraceful or immoral. The labor tribunals gravely abused their discretion
in upholding the validity of the petitioner's dismissal as the charge against
the petitioner lay not on substantial evidence, but on the bare allegations of
SSCW. In turn, the CA committed reversible error in upholding the validity
of the petitioner's dismissal, failing to recognize that the labor tribunals
gravely abused their discretion in ruling for the respondents.

The petitioner is entitled to

separation pay, in lieu of actual
reinstatement, full backwages and
attorney's fees, but not to moral
and exemplary damages.

Having established that the petitioner was illegally dismissed, the Court
now determines the reliefs that she is entitled to and their extent. Under the
law and prevailing jurisprudence, "an illegally dismissed employee is
entitled to reinstatement as a matter of right."[54] Aside from the instances
provided under Articles 283[55] and 284[56] of the Labor Code, separation
pay is, however, granted when reinstatement is no longer feasible because
of strained relations between the employer and the employee. In cases of
illegal dismissal, the accepted doctrine is that separation pay is available in
lieu of reinstatement when the latter recourse is no longer practical or in
the best interest of the parties.[57]

In Divine Word High School v. NLRC,[58] the Court ordered the employer
Catholic school to pay the illegally dismissed high school teacher separation
pay in lieu of actual reinstatement since her continued presence as a
teacher in the school "may well be met with antipathy and antagonism by
some sectors in the school community."[59]

In view of the particular circumstances of this case, it would be more

prudent to direct SSCW to pay the petitioner separation pay in lieu of actual
reinstatement. The continued employment of the petitioner with SSCW
would only serve to intensify the atmosphere of antipathy and antagonism
between the parties. Consequently, the Court awards separation pay to the
petitioner equivalent to one (1) month pay for every year of service, with a
fraction of at least six (6) months considered as one (1) whole year, from
the time of her illegal dismissal up to the finality of this judgment, as an
alternative to reinstatement.

Also, "employees who are illegally dismissed are entitled to full backwages,
inclusive of allowances and other benefits or their monetary equivalent,
computed from the time their actual compensation was withheld from them
up to the time of their actual reinstatement but if reinstatement is no longer
possible, the backwages shall be computed from the time of their illegal
termination up to the finality of the decision."[60] Accordingly, the petitioner
is entitled to an award of full backwages from the time she was illegally
dismissed up to the finality of this decision.

Nevertheless, the petitioner is not entitled to moral and exemplary

damages. "A dismissed employee is entitled to moral damages when the
dismissal is attended by bad faith or fraud or constitutes an act oppressive
to labor, or is done in a manner contrary to good morals, good customs or
public policy. Exemplary damages may be awarded if the dismissal is
effected in a wanton, oppressive or malevolent manner."[61]

"Bad faith, under the law, does not simply connote bad judgment or
negligence. It imports a dishonest purpose or some moral obliquity and
conscious doing of a wrong, or a breach of a known duty through some
motive or interest or ill will that partakes of the nature of fraud."[62]

"It must be noted that the burden of proving bad faith rests on the one
alleging it"[63] since basic is the principle that good faith is presumed and he
who alleges bad faith has the duty to prove the same.[64] "Allegations of bad
faith and fraud must be proved by clear and convincing evidence."[65]

The records of this case are bereft of any clear and convincing evidence
showing that the respondents acted in bad faith or in a wanton or
fraudulent manner in dismissing the petitioner. That the petitioner was
illegally dismissed is insufficient to prove bad faith. A dismissal may be
contrary to law but by itself alone, it does not establish bad faith to entitle
the dismissed employee to moral damages. The award of moral and
exemplary damages cannot be justified solely upon the premise that the
employer dismissed his employee without cause.[66]

However, the petitioner is entitled to attorney's fees in the amount of 10%

of the total monetary award pursuant to Article 111[67] of the Labor Code. "It
is settled that where an employee was forced to litigate and, thus, incur
expenses to protect his rights and interest, the award of attorney's fees is
legally and morally justifiable."[68]

Finally, legal interest shall be imposed on the monetary awards herein

granted at the rate of six percent (6%) per annum from the finality of this
judgment until fully paid.[69]

WHEREFORE, in consideration of the foregoing disquisitions, the

petition is GRANTED. The Decision dated September 24, 2008 and
Resolution dated March 2, 2009 of the Court of Appeals in CA-G.R. SP No.
100188 are hereby REVERSED and SET ASIDE.

The respondent, St. Scholastica's College Westgrove, is hereby declared

guilty of illegal dismissal and is hereby ORDERED to pay the petitioner,
Cheryll Santos Leus, the following: (a) separation pay in lieu of actual
reinstatement equivalent to one (1) month pay for every year of service,
with a fraction of at least six (6) months considered as one (1) whole year
from the time of her dismissal up to the finality of this Decision; (b) full
backwages from the time of her illegal dismissal up to the finality of this
Decision; and (c) attorney's fees equivalent to ten percent (10%) of the total
monetary award. The monetary awards herein granted shall earn legal
interest at the rate of six percent (6%) per annum from the date of the
finality of this Decision until fully paid. The case is REMANDED to the
Labor Arbiter for the computation of petitioner's monetary awards.

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta, Villarama, Jr., and Jardeleza,

JJ., concur.

February 17, 2015

 N O T I C E OF J U D G M E N T

Sirs/Mesdames:

Please take notice that on ___January 28, 2015___ a Decision, copy

attached herewith, was rendered by the Supreme Court in the above-
entitled case, the original of which was received by this Office on February
17, 2015 at 1:46 p.m.

Very truly yours,

(SGD)
WILFREDO V. LAPITAN
Division Clerk of Court

FACTS:
Petitioner assails the validity of Sec. 14 of the The People's Court Act, Commonwealth Act 682, which provided that
the President could designate Judges of First Instance, Judges-at-large of First Instance or Cadastral Judges to sit as
substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required
constitutional qualifications of a regular Supreme Court Justice.

ISSUE: Whether or not Sec. 14 of CA 682 is constitutional

RULING:

No. Sec. 14 of CA 582 is unconstitutional.

Article VIII, sections 4 and 5, of the Constitution do not admit any composition of the Supreme Court other than the
Chief Justice and Associate Justices therein mentioned appointed as therein provided. And the infringement is
enhanced and aggravated where a majority of the members of the Court — as in this case — are replaced by judges
of first instance. It is distinctly another Supreme Court in addition to this. And the constitution provides for
only one Supreme Court.

Grounds for disqualification added by section 14 of Commonwealth Act No. 682 to those already existing at the
time of the adoption of the Constitution and continued by it is not only arbitrary and irrational but positively
violative of the organic law.

Constitutional requirement (Art. VIII Sec 5) provides that the members of the Supreme Court should be appointed
by the President with the consent of the CoA, "Unless provided by law" in Sec 4 cannot be construed to authorize
any legislation which would alter the composition of the Supreme Court, as determined by the Constitution.

However temporary or brief may be the participation of a judge designated under Sec. 14 of PCA, there is no
escaping the fact the he would be participating in the deliberations and acts of the SC, as the appellate tribunal, and
his vote would count as much as that any regular Justice of the Court. "A temporary member" therefore would be a
misnomer, as that position is not contemplated by the Constitution, where Sec.4 of Art. VIII only provides A Chief
Justice and Associate Justices who have to be thus appointed and confirmed (Sec5).

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QUESTIONS?
80 Phil. 297

HILADO, J.:
Counsel for the defense, in a motion dated August 28, 1947, assails the
constitutionality of section 14 of the People's Court Act (Commonwealth Act
No. 682) upon the following grounds:
"(a) It provides for qualifications of members of the Supreme Court, other
than those provided in section 6, Article VIII of the Philippine Constitution.
"(b) It authorizes the appointment of members of the Supreme Court who
do not possess the qualifications set forth in section 6, Article VIII, of the
Philippine Constitution.
"(c) It removes from office the members of the Supreme Court by means of
a procedure other than impeachment, contrary to Article IX, of the
Philippine Constitution.
"(d) It deprives the Commission on Appointments of Congress of its
constitutional prerogative to confirm or reject appointments to the
Supreme Court.
"(e) It creates two Supreme Courts.
"(f) It impairs the rule making power of the Supreme Court, contrary to
section 13, Article VIII, of the Philippine Constitution.
"(g) It is a Bill of Attainder, for it punishes by disqualification members of
the Supreme Court who rendered said public service during the Japanese
occupation.
"(h) It denies the equal protection of the laws.
"(i) It is an ex post pacto legislation.
"(j) It amends the Constitution by a procedure not sanctioned by Article
XV, of the Philippine Constitution.
"(k) It destroys the independence of the Judiciary, and it permits the
'packing' of the Supreme Court in certain cases, either by Congress or by the
President."
The Solicitor General, in behalf of the prosecution, opposes the motion and
in support of his opposition submits these propositions:
"1. Power of Congress to enact section 14 of Commonwealth Act No. 682.
"2. Section 14 of Commonwealth Act No. 682 does not and is not intended
to provide an additional qualification for members of the Supreme Court,
much less does it amend section 6, Article VIII, of the Constitution of the
Philippines.
"3. Qualifications of members of the Supreme Court prescribed in section 6,
Article VIII of the Constitution apply to permanent "appointees" not to
temporary 'designees.'
"4. Section 5, Article VIII of the Constitution is not applicable to temporary
designations under section 14, Commonwealth Act No. 682.
"5. It does not remove but merely disqualifies the members of the Supreme
Court affected to sit and vote in the particular class of cases therein
mentioned.
"6. It does not create an additional 'Special Supreme Court.'
"7. It does not impair the rule-making power of the Supreme Court but
merely supplements the Rules of Court.
"8. It is not a bill of attainder.
"9. It is not an ex post pacto law.
"10. It does not deny equal protection of the laws either to the Justices of
the Supreme Court affected or to the treason indictees concerned.
"11. It does not amend any constitutional provision.
"12. It does not destroy the independence of the judiciary or curtail the
jurisdiction of the Supreme Court."
This opposition is a reproduction by reference in the instant case of a
similar pleading filed by the Solicitor General in G. R. No. L-398,
People vs. Sison, pursuant to the resolution of this Court in the instant case
dated October 30, 1947, granting the prayer of the Assistant Solicitor
General that in the consideration of petitioner's motion of August 28, 1947,
herein, the said opposition in G. R. No. L-398 be deemed incorporated in
the instant case as the government's answer to the petitioner's
memorandum herein of September 27, 1947.
It will not be necessary for the purposes of this resolution to consider and
decide all the legal questions thus raised by these conflicting contentions of
the parties.
For the purposes of the present resolution, the considerations presently to
be set forth are deemed sufficient. Article VIII, section 4, of the
Constitution ordains that the Supreme Court shall be composed of a Chief
Justice and ten Associate Justices and may sit either in banc or in two
divisions unless otherwise provided by law. Section 5 of the same Article
provides, inter alia, that the members of the Supreme Court shall be
appointed by the President with the consent of the Commission on
Appointments. Section 6 of the same Article stipulates that no person may
be appointed member of the Supreme Court unless he has been five years a
citizen of the Philippines, is at least 40 years of age, and has for 10 years or
more been a judge of a court of record or engaged in the practice of law in
the Philippines. By virtue of section 9 of said Article, the members of the
Supreme Court, among other judicial officials, shall hold office during good
behavior, until they reach the age of 70 years, or become incapacitated to
discharge the duties of their office. Section 13 of the same Article VIII, inter
alia, enunciates that the then existing laws on pleading, practice, and
procedure are thereby repealed as statutes, and are declared rules of court,
subject to the power of the Supreme Court to alter and modify the same,
and to the power of the Congress to repeal, alter, or supplement them. Art.
XVI, section 2, provides that "all laws of the Philippine Islands shall
continue in force until the inauguration of the Commonwealth, and
thereafter they shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the Congress
of the Philippines * * *"
Before the adoption of the Constitution, the law on disqualification of
judges was contained in the Code of Civil Procedure, sections 8 and 698. If
said sections should be considered as parts of the then existing adjective
legislation, Article VIII, section 18, of the constitution repealed them along
with others dealing with pleading, practice and procedure, as statutes, and
declared them rules of court, subject to the power of the Supreme Court to
alter and modify the same, without prejudice to the power of the Congress
to repeal, alter or supplement them. In such case, when the Constitution so
provided in said section 13, it sanctioned as rules of court, among other
provisions, those in said sections 8 and 608 of the former Code of Civil
Procedure concerning the disqualification of judges. If said sections should
be deemed as pertaining to the then existing substantive legislation, then
they were continued as laws or statutes by the aforecited provision of
Article XVI, section 2.
By virtue either of Article VIII, section 13, or Article XVI, section 2, of the
constitution, therefore, the grounds for disqualifying judges, which had
been held to include justices of the Supreme Court (Jurado & Co. vs.
Hongkong & Shanghai Banking Corporation, 1 Phil., 395) were those
established in sections 8 and 608 of the former Code of Civil Procedure.
The Supreme Court later promulgated the present Rules of Court wherein
Rule 126 treats of the matter of disqualification of judicial officers. The
provisions of said rule have obviously been taken from the abovecited
sections 8 and 608 of the same former Code of Civil Procedure (see also II
Moran, Comments on the Rules of Court, 2d ed., pp. 779-782). By reason of
the fact that the aforementioned provisions of the former Code of Civil
Procedure were continued by the constitution itself, either as rules of court
or as laws or statutes a point we need not now decide there can be no
question of unconstitutionality or repugnancy of said provisions to the
constitution as regards the disqualification of judicial officers. In other
words, the framers deemed it fit, right, and proper that said provisions shall
continue to govern the disqualification of judicial officers.
Such question of unconstitutionality or repugnancy to the constitution,
however, arises in relation to the disqualification of certain members of the
Supreme Court provided for in section 14 of the People's Court Act which
says:
"SEC. 14. Any Justice of the Supreme Court who held any office or position
under the Philippine Executive Commission or under the government
called Philippine Republic may not sit and vote in any case brought to that
Court under section thirteen hereof in which the accused is a person who
held any office or position under either or both the Philippine Executive
Commission and the Philippine Republic or any branch, instrumentality
and/or agency thereof.
"If, on account of such disqualification, or because of any of the grounds of
disqualification of judges, in Rule 126, section 1 of the Rules of Court, or on
account of illness, absence or temporary disability the requisite number of
Justices necessary to constitute a quorum or to render judgment in any case
is not present, the President may designate such number of Judges of First
Instance, Judges-at-large of First Instance, or Cadastral Judges, having
none of the disqualifications set forth in said section one hereof, as may be
necessary to sit temporarily as Justices of said Court, in order to form
a quorum or until a judgment in said case is reached."
We propose to approach this question from the following angles: (a)
whether or not the Congress had power to add to the pre-existing grounds
of disqualification of a Justice of the Supreme Court, that provided for in
said section 14; (b) whether or not a person may act as a Justice of the
Supreme Court who has not been duly appointed by the President and
confirmed by the Commission on Appointments pursuant to the
constitution, even only as a "designee"; and (c) whether or not by the
method of "designation" created by the aforecited section 14 a Judge of
First Instance, Judge-at-large of First Instance, or Cadastral Judge,
designated by the President under the same section can constitutionally "sit
temporarily as Justice" of the Supreme Court by virtue thereof.
(a) We start with the principle, well known to the legal profession, that no
act of the legislature repugnant to the constitution can become a law (In
re Guariña, 24 Phil., 37, 45; Marbury vs. Madison, 1 Cranch, 175). To
discover whether the above quoted section 14 of the People's Court Act is
repugnant to the constitution, one of the best tests would be to compare the
operation of the pertinent constitutional provisions without said section,
with their operation with the same section if the latter were to be allowed to
produce its effects. It is self-evident that before the enactment of the oft-
quoted section of the People's Court Act, it was not only the power but the
bounden duty of all the members of the Supreme Court to sit in judgment
in all treason cases duly brought or appealed to the Court. That power and
that duty arise from the above cited sections of Article VIII of the
Constitution, namely, section 4, providing how the court shall be composed
and how it may sit, section 9, ordaining that they shall hold office during
good behavior until they reach the age of seventy years, or become
incapacitated to discharge the duties of their office, and the pertinent
constitutional and statutory provisions bearing on the jurisdiction, powers
and responsibilities of the Supreme Court. Concretely referring to the
instant case, if section 14 of the People's Court Act had not been inserted
therein, there can be no question that each and every member of this Court
would have to sit in judgment in said case.
But if said section 14 were to be effective, such members of the Court "who
held any office or position under the Philippine Executive Commission or
under the government called Philippine Republic" would be disqualified
from sitting and voting in the instant case, because the accused herein is a
person who likewise held an office or position at least under the Philippine
Executive Commission. In other words, what the constitution in this
respect ordained as a power and a duty to be exercised and fulfilled by said
members of the Court, the quoted section of the People's Court Act would
prohibit them from exercising and fulfilling. What the constitution directs
the section prohibits. A clearer case of repugnancy to the fundamental law
can hardly be imagined.
For repugnancy to result it is not necessary that there should be an
actual removal of the disqualified Justice from his office for, as above
demonstrated, were it not for the challenged section 14 there would have
been an uninterrupted continuity in the tenure of the displaced Justice and
in his exercise of the powers and fulfillment of the duties appertaining to
his office, saving only proper cases or disqualification under Rule 126. What
matters here is not only that the Justice affected continue to be a member
of the Court and to enjoy the emoluments as well as to exercise the other
powers and fulfill the other duties of his office, but that he be left
unhampered to exercise all the powers and fulfill all the responsibilities of
said office in all cases properly coming before his Court under the
constitution, again without prejudice to proper cases of disqualification
under Rule 126. Any statute enacted by the legislature which would impede
him in this regard, in the words of this Court in In re Guariña, supra, citing
Marbury vs. Madison, supra, simply "can not become law."
It goes without saying that, whether the matter of disqualification of
judicial officers belongs to the realm of adjective, or to that of substantive
law, whatever modification, change or innovation the legislature may
propose to introduce therein, must not in any way contravene the
provisions of the constitution, nor be repugnant to the genius of the
governmental system established thereby. The tripartite system, the mutual
independence of the three departments in particular, the independence of
the judiciary , the scheme of checks and balances, are commonplaces in
democratic governments like this Republic. No legislation may be allowed
which would destroy or tend to destroy any of them.
Under Article VIII, section 2(4) of the Constitution the Supreme Court may
not be deprived of its appellate jurisdiction, among others, over those
criminal cases where the penalty may be death or life imprisonment.
Treason may be punished with death or life imprisonment. Pursuant to
Article VIII, sections 4, 5, 6, and 9 of the Constitution the jurisdiction of the
Supreme Court may only be exercised by the Chief Justice and Associate
Justices appointed by the President with the consent of the Commission on
Appointments, sitting in banc or in division, and in cases like those
involving treason they must sit in banc. If, according to section 4 of said
Article VIII, "the Supreme Court shall be composed" of the Chief Justice
and Associate Justices therein referred to, its jurisdiction can only be
exercised by it as thus composed. To disqualify any of these constitutional
component members of the Court particularly, as in the instant case, a
majority of them in a treason case, is nothing short of pro tanto depriving
the Court itself of its jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his judicial power. (Diehl vs.
Crumb, 72 Okl., 108; 179 Pac, 44). And if that judge is the one designated
by the constitution to exercise the jurisdiction of his court, as is the case
with the Justices of this Court, the deprivation of his or their judicial power
is equivalent to the deprivation of the judicial power of the court itself. It
would seem evident that if the Congress could disqualify members of this
Court to take part in the hearing and determination of certain collaboration
cases it could extend the disqualification to other cases. The question is not
one of degree or reasonableness. It affects the very heart of judicial
independence.
Willoughby's United States Constitutional Law, under the topic of
separation of powers, Volume 3, pages 1622-1624, says:
"Upon the other hand, as we shall see, the courts have not hesitated to
protect their own independence from legislative control, not simply by
refusing to give effect to retroactive declaratory statutes, or to acts
attempting the revision or reversal of judicial determination, but by
refusing themselves to entertain jurisdiction in cases in which they have not
been given the power to enforce their decrees by their own writs of
execution. Thus, as already mentioned, they have refused to act where their
decisions have been subject to legislative or administrative revisions.
Finally, even where the extent of their jurisdiction, as to both parties
litigant and subject-matter, has been subject to legislative control, the
courts have not permitted themselves to be deprived of the power necessary
for maintaining the dignity, the orderly course of their procedure, and the
effectiveness of their writs.
"In order that the court may perform its judicial functions with dignity and
effectiveness, it is necessary that it should possess certain powers. Among
these is the right to issue certain writs, called extraordinary writs, such as
mandamus, injunction, certiorari, prohibition, etc., and especially, to
punish for contempt any disobedience to its orders. The possession of these
powers the courts have jealously guarded, and in accordance with the
constitutional doctrine of the separation and independence of the three
departments of government, have held, and undoubtedly will continue to
hold, invalid any attempt on the part of the legislature to deprive them by
statute of any power the exercise of which they deem essential to the proper
performance of their judicial functions. The extent of their jurisdiction, they
argue, may be more or less within legislative control, but the possession of
powers for the efficient exercise of that jurisdiction, whether statutory or
constitutional, which they do possess, they cannot be deprived of.
"It has been already pointed out that the jurisdictions of the inferior
Federal courts and the appellate jurisdiction of the Supreme Court are
wholly within the control of Congress, depending as they do upon statutory
grant. It has, however, been argued that while the extent of this jurisdiction
is thus within the control of the legislature, that body may not control the
manner in which the jurisdiction which is granted shall be exercised, at
least to the extent of denying to the courts the authority to issue writs and
take other judicial action necessary for the proper and effective execution of
their functions. In other words, the argument is, that while jurisdiction is
obtained by congressional grant, judicial power, when once a court is
established and given a jurisdiction, at once attaches by the direct force of
the Constitution.
"This position was especially argued by Senator Knox, Spooner and
Culberson and contested by Senator Bailey during the debate upon the
Repburn Railway Rate Bill of 1906. The point at issue was the
constitutionality of the amendment offered by' Senator Bailey providing
that no rate or charge, regulation or practice, prescribed by the Interstate
Commerce Commission, should be set aside or suspended by any
preliminary or interlocutory decree or order of a circuit court.
"This position would seem to be well taken, and would apply to attempts
upon the part of Congress to specify the classes of statutes whose
constitutionality may be questioned by the courts, or to declare the number
of justices of the Supreme Court who will be required to concur in order to
render a judgment declaring the unconstitutionality of an act of Congress."
In State vs. Morrill (16 Ark., 384), the Supreme Court of Arkansas declared:
"The legislature may regulate the exercise of, but cannot abridge, the
express or necessarily implied powers granted to this court by the
Constitution. If it could, it might encroach upon both the judicial and
executive departments, and draw to itself all the powers of government;
and thereby destroy that admirable system of checks and balances to be
found in the organic framework of both the federal and state institutions,
and a favorite theory in the government of the American People * * *."
The members affected by the prohibition have heretofore disqualified
themselves, partly because they presumed the statute valid and partly
because they would rather have no hand in the revision of the appeals, for
the purpose of avoiding even a breath of suspicion as to the impartiality of
their actuations. However, realizing upon a thorough analysis of the matter
by counsel on both sides, the far-reaching implications which the precedent
might authorize, imperiling the independence of one coordinate branch of
the Government, they finally cast aside all reluctance to consider the point,
and came out with practical unanimity to condemn any legislation which
impinges or might impinge upon the fundamental independent powers of
the judicature.
Some of them have no quarrel with legislative authority to enumerate
instances in which judges may not sit. They would even concede that. But,
they say, let the rules be promulgated before the event happens or litigation
arises. To promulgate them after, would enable the Congress in specific
situations to order that Judge X shall not decide the controversy between Y
and Z or that. Justice M shall not sit in the appeal of P. S. and so on ad
infinitum, and thus decisively influence the decision, for or against one
party litigant. Such legislative power might thus be wielded to interfere with
the functions of the judiciary, depriving Philippine citizens of their right to
impartial awards from judges selected without any reference to the parties
or interests to be affected. Unnecessary to prove or impute sinister motives
behind the statutory disqualification. Enough that recognition of the power
might give way to the operation of unworthy combinations or oppressive
designs.
Let it not be argued that the Court is the same, only the membership being
different. Because Article VIII, sections 4 and 5, of the Constitution do not
admit any composition of the Supreme Court other than by the Chief
Justice and Associate Justices therein mentioned appointed as therein
provided. And the infringement is enhanced and aggravated where a
majority of the members of the Court as in this case are replaced by judges
of first instance. It is distinctly another Supreme Court in addition to this.
And the constitution provides for only one Supreme Court.
From all that has been said above it results that the ground for
disqualification added by section 14 of Commonwealth Act No. 682 to those
already existing at the time of the adoption of the Constitution and
continued by it is not only arbitrary and irrational but positively violative of
the organic law.
(b) In the face of the constitutional requirement (Art. VIII, section 5) that
the members of the Supreme Court should be appointed by the
President with the consent of the Commission on Appointments, we are of
opinion that no person not so appointed may act as Justice of the Supreme
Court and that the "designation" authorized in section 14 of the People's
Court Act to be made by the President of any Judge of First Instance,
Judge-at-large of First Instance or Cadastral Judge, can not possibly be a
compliance with the provision requiring that appointment. An additional
disqualifying circumstance of the "designee" is the lack of confirmation by
or consent of the Commission on Appointments. Without intending the
least reflection on the ability, learning, and integrity of any such "designee,"
we are merely construing and applying the fundamental law of the land. A
Judge of First Instance, Judge-at-large of First Instance or Cadastral Judge,
under section 149 of the Revised Administrative Code, need not be at least
forty years of age, nor have for ten years or more been a judge of a court of
record or engaged in the practice of law in the Philippines (as required by
section 6 of Article VIII of the Constitution), because under said section he
need only have practiced law in the Philippines for a period of not less than
five years or have held during a like period within the Philippines an office
requiring a lawyer's diploma. So that it may happen that a "designee" under
section 14 of the People's Court Act, sitting as a substitute Justice of the
Supreme Court in particular collaboration cases, and participating therein
in the deliberations and functions of the Supreme Court, like any regular
Justice thereof, does not possess the required constitutional qualifications
of a regular member of said Court. Here again is another point of
repugnancy between the challenged section and the constitution. And if we
consider the actual fact that only four of the present ten Justices of this
Court are not adversely affected by the disqualification established in
section 14 of the People's Court Act, we see that the "designees" constitute a
majority when sitting with said four Justices, giving rise to the result that, if
the body composed by them all should be considered as the Supreme Court,
it would be composed by four members appointed and confirmed pursuant
to sections 4 and 5 of Article VIII of the Constitution and six who have not
been so appointed and confirmed. The situation would not be helped any by
saying that such composition of the Court is only temporary, for no
temporary composition of the Supreme Court is authorized by the
constitution. This Tribunal, as established under the organic law, is one of
the permanent institutions of the government. The clause "unless otherwise
provided by law" found in said section 4 can not be construed to authorize
any legislation which would alter the composition of the Supreme Court, as
determined by the constitution, for however brief a time as may be
imagined. In principle, what really matters is not the length or shortness of
the alteration of the constitutional composition of the Court, but the very
permanence and unalterability of that composition so long as the
constitution which ordains it remains permanent and unaltered. We are
furthermore of opinion that said clause refers to the number of Justices
who were to compose the Court upon its initial organization under the
Commonwealth, and the manner of its sitting; that is, that the Legislature,
when providing for the initial organization of the Supreme Court under the
Commonwealth, was authorized to fix a different number of Justices than
eleven, and determine the manner of the Court's sitting differently from
that established in section 4 of Article VIII of the Constitution, but it was
and is not empowered to alter the qualifications of the Justices and the
mode of their appointment, which are matters governed by sections 5 and 6
of said Article VIII wherein the clause "unless otherwise provided by law"
does not even exist, nor the provision on who shall be the component
members of the Court. Such a legislation was enacted in the form of
Commonwealth Acts Nos. 3 and 259, the pertinent provisions of which
amended sections 133 and 134 of the Revised Administrative Code. But
after liberation, the Chief Executive, by Executive Order No. 40 (41 Off.
Gaz., 187), amended sections 133 and 134 of the Revised Administrative
Code, as amended by section 2 of Commonwealth Act No. 3 and sections 1
and 2 of Commonwealth Act No. 259, and repealed all acts or parts of acts
inconsistent with the provisions of said executive order; and the same Chief
Executive, by Executive Order No. 86 (42 Off. Gaz., 15) further amended
section 133 of the Revised Administrative Code, as thus previously
amended, also repealing all acts or parts of acts inconsistent therewith.
Both by virtue of Executive Order No. 40 and Executive Order No. 86, the
number of Justices of the Supreme Court, as originally fixed at eleven by
the Constitution, was restored.
(c) However temporary or brief may be the action or participation of a
judge designated under section 14 of the People's Court Act in a
collaboration case of the class therein defined, there is no escaping the fact
that he would be participating in the deliberations and acts of the Supreme
Court, as the appellate tribunal in such a case, and if allowed to do so, his
vote would count as much as that of any regular Justice of the Court. There
can be no doubt that the Chief Justice and Associate Justices required by
section 4 of Article VIII of the Constitution to compose the Supreme Court
are the regular members of the Court indeed, a "temporary member"
thereof would be a misnomer, implying a position not contemplated by the
constitution. Section 5 of the same Article VIII, in requiring the members of
the Supreme Court to be appointed by the President with the consent of the
Commission on Appointments, makes it plainly indubitable that the Chief
Justice and Associate Justices who are to compose the Court and sit therein
under section 4, have to be thus appointed and confirmed.
As already adverted to, a mere designation under section 14 of the People's
Court Act does not satisfy the constitutional requirement of appointment,
with the additional circumstance that as to such designation the
Commission on Appointments is entirely dispensed with. We find
absolutely nothing in the context which may soundly be construed as
authorizing, merely by legislation, any change in the constitutional
composition of the Supreme Court, or the performance of its functions by
any but its constitutional members. On the other hand, we have to go by
the cardinal rule that "usually provisions of a constitution are mandatory
rather than directory, and mandatory provisions are binding on all
departments of the government." (16 C. J. S., 120).
"The main reason for this rule is that in Constitutions the sovereign itself
speaks and is laying down rules which, for the time at least, are to control
alike the government and the governed. It is an instrument of a solemn and
permanent character, laying down fundamental maxims, and, ordinarily, is
not supposed to concern itself with mere rules of order in unessential
matters" (Baker vs. Moorhead, 174 N. W., 430, 431; 103 Neb., 811);
"Court is loath to say that any language of the constitution is merely
directory". Scopes vs. State, 289 S. W., 363, 366; 154 Tenn., 106; 53 A. L.
R., 821). (Footnote 93, C. J. S., 120.)
Under sections 4 and 5 of Article VIII of the Constitution, it is clear that the
framers intended the Supreme Court to function through the members who
are therein defined; and by section 6 they determined who may be
appointed such members. This naturally excludes the intervention of any
person or official who is not a member of the Court in the performance of
its functions; and it is self-evident that the "designees" spoken of in section
14 of the People's Court Act can not be such members in view of the fact
that they have not beenappointed and confirmed as such pursuant to said
sections 5 and 6.
Hence, we do not see the way clear to the proposition that the "designees"
in such a case can constitutionally "sit temporarily as Justices" of the
Supreme Court.
By an act of the United States Congress dated February 6, 1905, it was
provided in part as follows:
"Temporary judges of Supreme Court; * * * Whenever by reason of
temporary disability of any judge of the Supreme Court or by reason of
vacancies occurring therein, a quorum of the court shall not be present for
business the Governor General of the Philippine Islands is authorized to
designate a judge or judges of the court of first Instance in the islands to sit
and act temporarily as a judge or judges of the Supreme Court in order to
constitute a quorum of said Supreme Court for business. * * *."
A part of the membership of the Court believes that this provision is still in
force by virtue of Article XVI, section 2, of the Constitution, and should still
be applied to cases of "temporary disability * * * or vacancies occurring"
and preventing a quorum; while the other members are not prepared to
subscribe to the same view, for the reason that the designation" thereby
authorized would be "inconsistent with this Constitution," in the words of
the cited section, the same as the "designation" authorized by section 14 of
the People's Court Act. Anyway, we need not decide the point now.
This decision has been prepared before this date, and is being promulgated
before the Court acts upon the Solicitor General's motion to dismiss dated
February 17, 1948, for the rulings contained herein.
For the foregoing considerations, it is declared and ordered: (a) that section
14 of the People's Court Act is unconstitutional in the respects specified in
the body of this resolution; and (b) that this case be dealt with
henceforward in pursuance of and in harmony with this resolution. So
ordered.
Moran, C. J., Paras, Pablo, Bengzon, and Tuason, JJ., concur.
MORAN, C.J., concurring:
I agree with the majority decision principally upon the ground that section
14 of People's Court Act No. 682 is so unfair and unjustified that it not only
unjustly deprives a majority of the members of this Court of their member-
ship in the cognizance of treason cases, but it also provides for substitutes
who may not have the qualifications of Justices of the Supreme Court, thus
destroying the quality and integrity of the court's composition as is
provided by the Constitution. Judicial independence as intended by the
Constitution is greatly affected by this legal provision.
PERFECTO, J.:
We concur in the above resolution penned by Mr. Justice Hilado, our whole
position being stated in our separate concurring opinion.
BRIONES, J.:
Estoy conforme con la parte dispositiva y me reservo el redactar un
dictamen concurrente separado.
PERFECTO, J., concurring:
The constitutionality of section 14 of Commonwealth Act No. 682, creating
the People's Court, is again in issue.
As stated in the majority decision, penned by Mr. Justice Hilado, the
following are the eleven grounds upon which petitioner challenges the
validity of said section:
"(a) It provides for qualifications of members of the Supreme Court, other
than those provided in section 6, Article VIII of the Philippine Constitution.
"(b) It authorizes the appointment of members of the Supreme Court who
do not possess the qualifications set forth in section 6, Article VIII, of the
Philippine Constitution.
" (c) It removes from office the members of the Supreme Court by means of
a procedure other than impeachment, contrary to Article IX, of the
Philippine Constitution.
"(d) It deprives the Commission on Appointments of Congress of its
constitutional prerogative to confirm or reject appointments to the
Supreme Court.
"(e) It creates two Supreme Courts.
"(f) It impairs the rule making power of the Supreme Court, contrary to
section 13, Article VIII, of the Philippine Constitution.
"(g) It is a Bill of Attainder, for it punishes by disqualification members of
the Supreme Court who rendered said public service during the Japanese
occupation.
"(h) It denies the equal protection of the laws.
"(i) It is an ex post facto legislation.
"(j) It amends the Constitution by a procedure not sanctioned by Article
XV, of the Philippine Constitution.
"(k) It destroys the independence of the Judiciary, and it permits the
'packing' of the Supreme Court in certain cases, either by Congress or by the
President."
We fully concur in all the reasonings of the decision showing the conflict
between the section in controversy and the provisions of the Constitution
and, therefore, in the conclusion that said section is null and void ab initio,
with the same effect as if it had never been enacted. We are not, however, in
a position to agree with the pronouncements that may imply that the
Constitution has confirmed the provisions of the Code of Civil Procedure
regarding disqualifications of members of the judiciary. When the
Convention conferred upon the Supreme Court the rule-making power, as
provided in section 13 of Article VIII, it did not have in mind the idea of
considering the specific provisions of law then existing on pleading,
practice, and procedure in courts of justice, but only of repealing them as
statutory provisions and turning them into judicial rules, so that the
Supreme Court may alter and modify them. The conversion had been
necessary, because the power to change statutory provisions belongs
exclusively to the legislative department. Judicial disqualification is a
matter of substantive law and, therefore, beyond the rule-making power of
the Supreme Court. Otherwise, it will also be subject to legislation, as
Congress is expressly empowered to legislate upon judicial rules adopted by
the Supreme Court. Congress can not legislate on judicial disqualification
without jeopardizing judicial independence. Judicial qualifications and
disqualifications are matters basically constitutional. They go to the very
roots and existence of the judicial system established by our people. The
present provisions of the Constitution are amply satisfactory. If the good
behavior, age limit and incapacity to discharge the duties of the office
therein mentioned are not satisfactory, correction can be effected only by
constitutional amendment. We deem it unnecessary to elaborate now on
the propositions above enunciated.
The eleven grounds advanced by petitioner to assail the constitutionality of
section 14 of Commonwealth Act No. 682 are all well taken, as we have
already shown in our unpublished two written opinions in Rama vs. Misa,
L-263, dated February 27, and April 1, 1946.
In the first one we said:
"Since we began to enjoy the privilege of sitting in this Court, one of the
highest positions within the gift of our people, for less than a year, this is
the second time we are compelled to come out to fight for judicial
independence as one of the political values that should be treasured
permanently, if courts must forever be the unconquerable bulwark of the
rights and privileges of the individuals and the principles of justice, liberty,
and democracy. The first occasion was when we wrote our concurring
opinion on September 6, 1945, in the case of Raquiza vs. Bradford, L-44.
"The respondents' motion, upon which the majority resolution was
adopted, invokes the provisions of section 14 of Commonwealth Act No.
682, creating the People's Court, disqualifying any justice who held any
office or position under the Philippine Executive Commission or under the
government called Philippine Republic, during the enemy occupation, to sit
and vote in any case in which the accused held any office or position under
said governments or any branch, instrumentality, and/or agency thereof.
"We are of opinion that said section, so far as it provides for said
disqualification, is null and void, and without effect, because:
"(1) It is utterly wrong as a matter of principle;
"(2) It violates the Constitution of the Philippines; and
"(3) It destroys the judicial independence of the Supreme Court.
"Whatever the reason Congress had in mind in providing for said
disqualification, it is important to remember that respondents have made
of record that their motion 'is not inspired by any lack of confidence in the
impartiality, character, and integrity of the honorable members of this
Court affected by the relief sought,' and that there is no basis to say the
contrary.
"We must also bear in mind that in France, Mongibaux, the former Chief
Justice of the Supreme Court under the Vichy government, was the one
who tried, judged, and sentenced Marshal Petain. No one cast any doubt as
to his impartiality, character, and integrity. No one disputed the wisdom
and justice of his decision, condemning as guilty of collaboration the head
of the Vichy government.
"Article VIII, section 6, of the Constitution, provides for the qualifications
of a person who may be appointed member of the Supreme Court. Section
14 of Act 682, in effect, in the cases mentioned therein, amends the
Constitution by adding a new qualification, namely, that the member had
not held any office or position under the Philippine Executive Commission
or the so-called Philippine Republic. Congress, according to Article XV of
the Constitution, may propose amendments to it, the proposal to be
approved by the people, but it cannot amend it.
"Article VIII, section 8, of the Constitution, provides that Congress 'shall
prescribe the qualifications of judges of inferior courts.' We may construe
the provision as also authorizing Congress to prescribe the
'disqualifications' of said judges. But the very fact that such provision exists
in the Constitution regarding judges of inferior courts, but not of the
Supreme Court, must be interpreted to the effect that Congress is without
power to prescribe disqualifications for said justices. Inclusio unius est
exclusio alterius.
"Article VIII, section 9, of the Constitution, provides that the members of
the Supreme Court 'shall hold office during good behavior, until they reach
the age of seventy years, or become incapacitated to discharge the duties of
their office.' But the provision is completely silent as to how and by whom
said members may be deprived of their right to hold office in case they
become incapacitated to discharge the duties thereof, reach the age of
seventy, or failed to behave accordingly. Shall the power be exercised by the
Supreme Court itself, or shall it be left to the conscience of the affected
justice? Quacre. Certainly, they cannot be exercised by legislation.
"It seems that the good behavior clause of Article VIII, section 9, must be
jointly considered with Article IX, section 1, where the acts as against good
behavior under Article VIII, section 9, should be considered specified. In
such case, Article IX provides for the procedure for removal by
impeachment. The procedure provided in Article IX cannot be substituted
by legislation without violating the fundamental law of the land.
"With all the admiration and profound respect we entertain for Franklin
Delano Roosevelt, who possibly will be rated as the greatest president of the
United States of America, and, undoubtedly, as one of the highest apostles
of freedom, democracy, and humanity, we must admit that he committed a
great blunder when he proposed to pack the United States Supreme Court
with additional new and younger members. All the believers in democratic
institutions are glad that the proposal met defeat, the most crushing and
resounding one suffered in Congress by President Roosevelt.
"The wrong about to be committed by said proposal was one by addition.
The wrong committed by section 14 of Act 682 is by subtraction. Whether
by addition or by subtraction, the principle is essentially wrong, unjust,
subversive, destructive of the principle of separation of powers. It will,
ultimately, turn the Supreme Court, not as it is and should be, not as one of
the dignified powers of government, but as a mere appendix of Congress,
subject to the whims of the leaders of the same.
"With all our respect and regard for Congress, if we have to be realistic, we
should not close our eyes to the logical pernicious consequences of the
principle, if we sanction it, that would allow Congress to provide for
disqualifications on any ground, no matter what the wisdom or nonsense of
it, of justices of the Supreme Court. If we recognize that power in Congress,
it will make of the Supreme Court a mere tool in the hands of the leaders of
the legislative power who may, by legislation, disqualify one or more
members of the Supreme Court today, for one reason; tomorrow, upon
different grounds; and the day after tomorrow, on further grounds, until
the members affected are, in effect, deprived totally of their functions and
office, until the Supreme Court is altogether crippled or totally abolished.
"We refuse absolutely to sanction or to take part in such a governmental
framework where the highest tribunal of the land will not be more than a
mocking shadow of judicial power.
"No power in government should try, directly or indirectly, to control the
manner by which the Supreme Court and its members should administer
justice. Providing for disqualifications by law is an attempt to control the
Supreme Court and its members. Such attempt must be rejected with
energy. Once the members of this Supreme Court have been appointed,
their appointments have been confirmed by the Commission on
Appointments, and they have taken their oath of office, the only power that
can control their acts is the power of their own conscience. People and
government should depend on them with implicit faith and confidence.
Over their consciences will always loom, as an eternal guiding star, the
object of their functions: justice, with all its overpowering moral and divine
force.
"According to Cicero 'in justice the brilliance of virtue is greater, and from
her they receive their name just men' (De Offlc. 1. 1, tit. de Justitia); and
Saint Thomas Aquinas maintains that 'justice excels all other moral virtues'
and 'it is the most excellent among all other virtues' (Summa Theologica,
Second Part, Cuestion XVIII, Article XII.)
"Although the pseudo-progressives of new pattern, those intellectual
renegades who spurn the wisdom of the ages, may not relish it, we have to
quote from Aristotle that 'justice seems to be the most excellent virtue, and
that neither the afternoon star nor the morning star inspires more
admiration than her' (Ethics, 1. 5. c. 1), as 'the greatest virtues are
necessarily those which are more useful to others, because virtue is a
beneficent faculty' (Rhetor. 1, 1, c. 9). After all, those who look farther in the
past will see better the future. Who can pull the farther back the string of a
bow, he will send the arrow the farther. Robert Maynard Hutchins,
President of the University of Chicago, one of the institutions which greatly
contributed to the development of the atomic bomb, in the 1945 edition of
his book 'The High Learning in America' could not avoid invoking several
times the authority of the Stagirite. The Pleiad of great physicists who are
responsible for the ushering of the Atomic Energy Era, the most
revolutionary in the history of humanity Becquerel, Curie, Hertz, Einstein,
Bohr, Smyth, Rutherford, Meitner, Oppenheimer, and many others
themselves admitted that the ideas of Democritus and Aristotle on matter,
on energy, on the elements of universe, expressed centuries before Christ,
the philosopher's stone of the medieval alchemists, and the ideas of Galileo
and Newton are direct progenitors and inspirers of the present concepts on
matter and energy as the different expressions of the same thing and which
permitted the discovery of that wonderful microcosmos where the
constellations of electrons, protons, neutrons, deuterons, photons, alpha,
beta and gamma rays, and other radiant particles are in play, offering to
man the mastery it never had on physical nature with the harnessing of the
basic forces of universe.
"There are thoughts and ideas bequeathed to us by great thinkers which
remain fresh and young through the ages and centuries, like the flesh of the
woolly mammoth, buried in the Russian tundras, which today can still be
eaten, although the beasts died in the pre-historic darkness of remote
antiquity. Those are the thoughts and ideas insufflated with the vitality of
eternal truth. They spring from the minds of the geniuses with which
Nature, once in a while, blesses certain epochs, to be the intellectual leaders
of mankind for all time.
"The ignorants and retrogrades will never understand it; but it is a fact that
in the summit of his glorious career, Justice Holmes, the greatest judge of
modern times, continued reading Aristotle. To free themselves for the
sorrows they feel with the surrounding market of vulgarity, where pygmies
and riffraffs dominate, great minds seek enjoyment in the company of their
kind. Eagles will not be happy in the society of flies and mosquitoes. That
explains the calibre of the friends Rizal had in Europe.
"All these may sound esoteric to the unfortunate class of morons or mental
degenerates. We cannot help it. Our words are addressed to persons with
normal understanding.
"We wish to make it of record that, as a matter of fact, some of the members
who disqualified themselves had some doubts on the validity of any law,
passed after their appointment to this Court, which under the guise of
establishing disqualifications has the effect of either temporarily removing
them from office or changing the composition of the Supreme Court, when
called upon to decide those issues reserved to it by the Constitution. But
they chose not to inquire further into the matter, what with their opinion
that under section 14 disqualification was optional with them and the court,
and the prima facie presumption in favor of the law's validity.
"We, therefore, dissent from the majority's resolution. We maintain that the
affected members are duty bound to ignore section 14 of Act 682 and
should proceed to continue exercising their constitutional functions in the
present case."
The above was written in relation to a resolution adopted by the Supreme
Court with the members who decided to disqualify themselves taking part.
The second opinion was written in relation with a resolution adopted by a
body composed of a minority of Justices of the Supreme Court and a
majority of judges designated by the President of the Philippines to sit in
the Supreme Court. We stated therein:
"A motion was filed by petitioner impugning the organization and
constitution of the Supreme Court as presently constituted for purposes of
taking cognizance, trying and deciding the present case, raising specially
the issue as to the validity, under the Constitution, of the designation of the
five judges of courts of first instance to sit as acting justices of the Supreme
Court in substitution of the Chief Justice and four Justices who, upon
motion of the party respondent and in the compliance with the first
paragraph of section 14 of Act 682, creating the People's Court, inhibited
themselves in this case.
"The motion was filed on Monday, April 1, 1946, just before the hearing of
this case on the merits. After a few minutes deliberation, the majority
resolved to deny the motion and, consequently, to reject the point of
constitutional law raised in said motion.
"The question being of far-reaching importance and having been raised for
the first time, we were of opinion that it requires deep thinking and study,
matured deliberation, and ample and long discussion before this Supreme
Court could do full justice in disposing of so important question. For said
purposes the few minutes employed in considering and deciding the
question were, to our mind, absolutely inadequate. A few hours would even
be also inadequate. Days, with full opportunity for complete rest in the
intervening nights, are imperatively needed. But the majority, overruling
our position, unsupported by all the members of this court, except
ourselves, thought otherwise and decided the question on a lightning-like
fashion, deciding, furthermore, to verbally promulgate the resolution at the
beginning of the hearing, without waiting for the resolution to be formally
committed in writing as naturally must be expected from a court of record
par excellence as no other can be than the highest tribunal of the land.
"We wanted to have an opportunity of studying further the question, of
thinking more on it and, at least, for a solitary self discussion, in lieu of a
deliberation with our brethren assembled in a collective body, the benefits
of which we were deprived, we announced at the hearing, when the
resolution was verbally promulgated, that we are reserving our vote until
the resolution could be reduced to writing.
"Now we are ready to cast our vote with full consciousness, for the
upholding of the constitutional question raised by petitioner, and in
support of that vote we are writing this opinion.
"Our position is that the designation of the five judges of first instance to sit
in this Supreme Court as acting Justices in the place of the Chief Justice
and four Justices who inhibited themselves is, under the Constitution, null
and void; that said judges can not sit in this Supreme Court and take part in
its deliberations and decision in this case without violating the
Constitution; and that all actions of this court taken with the participation
of said temporary Justices are and must be declared null and void and
without effect. There are several grounds in support of this position.
I
"Section 1 of Article VIII of the Constitution provides:
"'The Judicial power shall be vested in one Supreme Court and in such
inferior courts as may be established by law.'
"This provision makes the Supreme Court a constitutional organism, whose
existence, constitution, and organization are provided in the fundamental
law of the land, and said matters cannot be the subject of laws enacted by
the legislative power, unless expressly so authorized by the Constitution
itself.
"Otherwise, Congress will be in a position to change the composition and
organization of the Supreme Court by actually amending the corresponding
constitutional provisions, and such thing cannot be done without violating
the fundamental law, as any amendment of the same to take effect must be
submitted to the sanction and approval of the people represented by the
body of the national electorate.
"The provisions of section 14 of Act 682 regarding disqualification of
members of this Supreme Court and for the designation of judges who may
take their place in this Court have the effect of amending the Constitution.
"In a former dissenting opinion in this case we have already had the
opportunity of expressing our opinion to the effect that said disqualification
provision is null and void, being violative of the Constitution.
"As a corollary, it is unavoidable to declare also unconstitutional the
provision which authorizes the President of the Philippines to designate
judges of inferior courts to sit in this Tribunal in the place of the
disqualified Justices, it appearing that there is nothing in the Constitution
authorizing Congress or any legislative body to enact a law providing for
said designation.
II
"Section 5 of Article VIII of the Constitution provides:
" ' The members of the Supreme Court and all judges of inferior courts shall
be appointed by the President with the consent of the Commission on
Appointments.'
"This provision clearly limits the procedure by which positions in the
Supreme Court may be filled up.
"Under the provision, the members of the Supreme Court must be
appointed by the President of the Philippines, and the appointment must
be with the consent of the Commission on Appointments.
"Section 6 of Article VIII of the Constitution can in no way be interpreted as
authorizing a judge of an inferior court to sit in this Supreme Court, not by
appointment by the President of the Philippines and with the consent of the
Commission on Appointments, but just by a mere designation made by the
President and without even the concurrence of the Commission on
Appointments.
"The designation of five judges of first instance to sit in this Supreme Court
constitutes a clear and flagrant violation of the constitutional provision
which requires that the members of the Supreme Court 'shall be appointed
by the President with the consent of the Commission on Appointments.'
"The provision in the second paragraph of section 14 of Act 682, in
authorizing the designation of judges of first instance to sit in this Supreme
Court, in fact, grants the President an arbitrary power which the framers of
the Constitution would never think of granting him.
"Said provisions, besides granting the President an arbitrary power, has the
effect of depriving the Commission on Appointments of its constitutional
right to consent or not to consent to the appointment of members of the
Supreme Court.
"The framers of the Constitution considered it wise to have the
appointment of members of the Supreme Court effected in such a way as
will guarantee the expression of the will of the people, considering that the
tremendous judicial powers which the Supreme Court exercises cannot but
affect vitally the well-being and happiness of all the people of the
Philippines.
"So they granted the power of appointment to the President, who is elected
at large by the whole country. But to establish further guarantees that the
appointments count with the whole-hearted approval of the people, the
authors of the Constitution provided that the appointments be approved by
the Commission on Appointments, which is composed of one-half of the
members of the Senate, including the President thereof, and of a
substantial number of members of the House of Representatives. In this
way, the members of this Supreme Court are appointed with the joint
action of the two powers of the government, more directly in contact with
the people, the executive and the legislative.
"The designation of judges of first instance to sit in this Supreme Court is
dependent only on the action of a single individual, action that is of
temporary nature and which may be changed, revoked, or reversed at any
time, under any circumstance, without any limitation except the
psychological limitations of the powers of his imagination.
III
"Section 6 of Article VIII of the Constitution provides:
" ' No person may be appointed member of the Supreme Court unless he
has been five years a citizen of the Philippines.'
"On the other side, section 8 of Article VIII of the Constitution provides
that:
" 'Congress shall prescribe the qualifications of judges of inferior courts, but
no person may be appointed judge of any such courts unless he is a citizen
of the Philippines.'
"As a member of the Constitutional Convention and of the Committee on
Style thereof which drafted the final text of the Constitution, we are in a
position to state categorically that the Constitutional Convention
considered it a vital guarantee that no member of the Supreme Court could
be appointed 'unless he has been five years a citizen of the Philippines',
because we would not trust the important functions of this Supreme Court
in the hands of men who have not enough time to learn, to think, and to feel
as a born Filipino citizen should. We considered this condition necessary
and vital with regards to the highest tribunal of the land, whose decisions
shall usually be the last word in the administration of justice.
"We did not deem it necessary to require the same condition with respect to
judges of courts inferior to the Supreme Court, so we provided that it was
enough that the appointee be 'a citizen of the Philippines', no matter
whether he be a one-year or one-day Filipino citizen.
"Therefore, a one-day Filipino citizen may become a judge of first instance.
If we have to abide by the provision of Act 682 herein in question, such
one-day Filipino citizen may be designated by the President to sit in the
Supreme Court. That is while the Constitution requires that a member of
the Supreme Court must be, at least, 'five years a citizen of the Philippines',
Commonwealth Act 682 authorizes to sit in this Supreme Court a judge
who is just a one-day or a one-year Filipino citizen. The violation of the
Constitution cannot be more patent and flagrant.
IV
"Section 6 of Article VIII of the Constitution requires that a person to be
appointed a member of the Supreme Court, must be 'at least 40 years of
age.'
"No such age requirement is provided in section 8 of Article VIII of the
Constitution with regards to judges of inferior courts.
"Therefore, a citizen who is 30 years or 20 years of age may be appointed as
judge of first instance.
"A judge of first instance of 30 or 20 years, under the provision in question
of Commonwealth Act 682, may be designated by the President to sit in this
Supreme Court.
"It is unnecessary that we would explain the reasons of the Constitutional
Convention in requiring that members of this Supreme Court must be at
least 40 years of age, as said reasons are self-evident.
"There is no reasoning that can avoid recognizing the fact that the provision
of Commonwealth Act 682 in authorizing, in fact, that a judge of 30 or 20
years of age may sit as acting Justice of the Supreme Court is an evident
violation of section 6 of Article VIII of the Constitution.
V
"Section 6 of Article VIII of the Constitution provides that no person may
be appointed member of the Supreme Court unless he 'has for ten years or
more been a judge of a court of record or engaged in the practice of law in
the Philippines.'
"Section 8 of Article VIII of the Constitution also requires that judges of
inferior courts should have been 'admitted to the practice of law in the
Philippines.'
"Therefore, a lawyer who has just been authorized to practice law may
immediately be appointed a judge of first instance.
"Such a judge, under Act 682, may be designated to sit as a member of this
Supreme Court.
"This is another clear violation of the Constitution when it provides in
section 6 of Article VIII that no person may be appointed as member of the
Supreme Court unless 'he has for ten years or more been a judge of a court
of record or engaged in the practice of law in the Philippines.'
VI
"Section 7 of Article VIII of the Constitution provides:
" 'No judge appointed for a particular district shall be designated or
transferred to another district without the approval of the Supreme Court.
The Congress shall by law determine the residence of judges of inferior
courts.'
"If a judge of an inferior court including courts of first instance and
municipal and justice of the peace courts cannot be transferred or
designated to another district without the approval of the Supreme Court,
how can he be transferred to a higher court, such as the Supreme Court,
without the approval of the latter?
"If to transfer a judge of a municipal court to another municipal court the
Constitution requires the approval of the Supreme Court, although the
transfer is to a court of the same category as the one to which the judge has
been appointed, and so is the case of a judge of first instance, it is so
because the Constitution seeks to maintain the stability of judges in their
respective districts, and that stability cannot be disturbed but by following
the constitutional procedure.
"Under the maxim of inclusio unius est exclusio alterius, a judge of an
inferior court cannot be transferred but only to other district of the same
category, provided the transfer is approved by the Supreme Court.
"The designation of judges of first instance to sit in this Supreme Court as
provided in section 14 of Act 682 is, in effect, a transfer, and being a
transfer not expressly authorized by the Constitution cannot be effected
without violating the Constitution.
VII
"So far, we have dealt with the qualifications of judges of inferior courts as
required by the Constitution, and it may be argued that the provisions of
the Constitution do not preclude the legislative power from requiring,
besides the minimum qualifications fixed by the Constitution, further
qualifications in such a way that no person may be appointed as judge of an
inferior court unless he possesses the same qualifications required by the
Constitution for a person to be appointed as a member of the Supreme
Court.
"As can be seen, the argument is based on a legal situation which may be set
up by the legislative power, but may not also happen in actual practice. This
very fact is enough basis for dismissing the argument.
"But if this were not enough, we may point out that the situation at present
shows the innate weakness of the argument, as the law at present does not
require that a person to be appointed to a position in any inferior court
should have the same qualifications required by the Constitution for a
person to be appointed a member of the Supreme Court.
"The qualifications for judges of first instance, the next following in
category to Justices of the Supreme Court, are provided for in section 149 of
the Administrative Code, which reads as follows:
" 'SEC. 149. Qualifications. No person shall be appointed judge of first
instance or auxiliary judge unless he has practiced law in the Philippine
Islands or in the United States for a period of not less than five years or has
held during a like period, within the Philippine Islands or within the United
States, an office requiring a lawyer's diploma as an indispensable requisite;
and before assuming such judicial office he shall qualify as a member of the
bar of the Supreme Court of the Philippine Islands if he has not already
done so.'
"As can be seen, none of the three essential qualifications specifically
required by the Constitution for a person to be appointed as a member of
the Supreme Court is required for a person to be appointed as a judge of
first instance.
"Consequently, section 14 of Act 682 is undeniably unconstitutional, not
only because it disqualifies and eliminates five members of this Supreme
Court, including the Chief Justice, such disqualifications being violative of
the Constitution, as we have shown in our dissenting opinion in this same
case dated February 27, 1946, but because in its second paragraph it
authorizes the designation of judges of inferior courts to sit temporarily as
Justices of the Supreme Court, although said judges are not required to
possess the qualifications required of a member of the Supreme Court.
"Said second paragraph of section 14 of Act 682 reads as follows:
" 'If, on account of such disqualification, or because of any of the grounds of
disqualification of judges in Rule 126, section 1 of the Rules of Court, or on
account of illness, absence or temporary disability the requisite number of
Justices necessary to constitute a quorum or to render judgment in any
case is not present, the President may designate such number of Judges of
First Instance, Judges-at-large of First Instance, or Cadastral Judges,
having none of the disqualifications set forth in said section one hereof, as
may be necessary to sit temporarily as Justices of said Court, in order to
form a quorum or until a judgment in said case is reached.'
"It can be alleged, as a matter of fact, that the five judges designated by the
President of the Philippines to sit as temporary Justices of the Supreme
Court in substitution of the Chief Justice and four Justices who inhibited
themselves from taking part in the consideration of this case, possess each
and everyone of them all the minimum qualifications required by the
Constitution of a person who could be appointed as Justice of the Supreme
Court.
"The fact does not destroy the theory that the second paragraph of section
14 of Act 682 authorizes, in utter violation of the Constitution, the
designation of judges not possessing all or any of the three minimum
constitutional qualifications as Justices of the Supreme Court to sit and act
as such Justices of the Supreme Court.
VIII
"To give effectiveness to section 14 of Act 682 is to sanction a principle
radically wrong and highly subversive.
"To recognize the power of Congress to enact section 14 of Act 682 is to
recognize in the legislative power an authority not granted to it by the
Constitution and which, in effect, is an authority that can be used, as in fact
it is actually used, to defeat the very provisions of the Constitution
concerning judicial power.
"If Congress were empowered to enact such a law, it is because it should be
recognized as possessing the power to legislate upon membership of this
Supreme Court, which is tantamount to making the Supreme Court a toy
that Congress may handle according to its caprice and whims.
"If Congress may authorize the designation of district judges of first
instance, judges-at-large of first instance, or cadastral judges, no matter
whether they are occupying their respective positions permanently or in
acting or temporary capacity, to sit as Justices of the Supreme Court, then
Congress may use the same power to authorize the designation of other
persons, including those who do not possess even the qualifications of
judges of inferior courts.
"If the theory is good, then there will be no limitations as to the class or
classes of persons which Congress may authorize to sit in the highest
tribunal of the land, except legislative discretion or political expediency,
none of which may be considered as limitations at all, there being no fast
principle or doctrine that may rule either one of them.
"One day Congress may authorize judges of lower courts to sit as Justices of
the Supreme Court. The next day it may authorize any person who is not
even a judge of a lower court nor a lawyer. And the day following the next,
Congress may authorize senators or representatives to sit as Justices of the
Supreme Court.
"Of course, these are extreme instances, and it may be argued that Congress
will not be so foolish as to entertain such action or to dare challenge the
good sense of public opinion. But such argument cannot destroy the logical
consequences of the principle which we are exposing as public menace
number one against the orderly organization and functioning of a
constitutional government.
"To show how wrong the principle is, we must follow it to all its
consequences, and it cannot be correct if it leads us to disaster, anarchy,
and chaos, such being the fatally inevitable results of the principle upon
which section 14 of Act 682 is premised.
IX
"Section 14 of Act 682, besides being evidently unconstitutional, is highly
inimical to public interests.
"Section 1 of Article VIII of the Constitution provides: 'The Judicial power
shall be vested in one Supreme Court and in such inferior courts as may be
established by law.'
"In accordance with this provision, the legislature created the judicial
positions to which the five judges designated as temporary Justices of the
Supreme Court have been appointed.
"It is undeniable that public interests demand that said judicial positions
should exist, that the positions be filled by the respective judges, that they
should function in order that they may do their part in the Philippine
system of administration of justice.
"The positions would not have been created by the legislature if not
required by public interests. The same public interests demand that the
positions should continue, otherwise, Congress would have abolished them.
Public interests demand that said positions be used to administer justice
and, in order that the position may function, they should be filled by the
corresponding judges. Therefore, by abiding by public interests, the
President of the Philippines appointed said five judges to their respective
judicial positions. But if there is any doubt as to the wisdom of the
President in appointing said judges, the Commission on Appointments by
passing upon the appointments will dispel it, and, lastly, there is the eternal
vigilance of the popular tribunal of last resort public opinion which cannot
fail to expose, unmask, and denounce the appointments if they are not
required by or are against public interests. Not a single voice has been
raised to oppose the appointments, not a single finger has been pointed to
denounce the appointments, not a single gesture has been shown against
the appointments.
"But, in pursuance of section 14 of Act 682, the five judges are snatched
from their respective positions and deprived of their functions as judges,
are eliminated from their jurisdiction to continue administering justice in
the many legal cases pending before them, just to unconstitutionally
assume functions as Justices of the Supreme Court.
"It cannot be denied that the legal cases pending before them in their
respective courts will have to be indefinitely postponed until they are freed
from the burden of serving as temporary Justices of the Supreme Court.
Once more a new cause is created to further aggravate the chronic ailment
of our administration of justice: delay. Once more the victims will clamor
with anguishing voice that immemorial plaint: justice delayed is justice
denied.
"There is absolutely no merit in the allegation that other judges may be
temporarily transferred to take the place of the judges designated to act as
Justices of the Supreme Court, because the transfer does not solve the
problem of delay, but only will have the effect of changing the victims of the
unjust delay. If it is said that other judges may be transferred to take the
place of those who may be transferred to take the place of those designated
as Justices of the Supreme Court, it can be answered that the situation shall
remain irretrievably a vicious circle, where a chain of makeshifts offers but
a temporarily relief by producing new wrongs and multiplying the number
of the victims.
X
"The power granted to the President by section 14 of Act 682 will permit a
judicial rigodon worst than the one against which Judge Borromeo engaged
in a legal battle which made history in our administration of justice, and
worst than the judicial lottery which was nullified through the efforts of
Judge Pedro Concepcion, later Presiding Justice of the Court of Appeals
and still later Justice of the Supreme Court, in a legal case which has also
become memorable.
"Under the provision in question, for reasons of his own or for no reason at
all, the President may replace the present five Justices in this Court by
designating other persons coming from different courts or judicial districts.
In the same fashion, the President may resubstitute with other judges the
first ones already designated, or may make such other possible changes in
the designations as he may deem proper. It is not impossible or improbable
that judges coming from Cagayan or the Ilocos, in Northern Luzon, or from
judicial districts in Mindanao, or from Leyte and Palawan, should be
shuffling and commuting in order to take turns in sitting as temporary
Justices of the Supreme Court.
"It is not impossible or improbable that for each group of cases there may
be designated a different group of five judges to sit as Justices of the
Supreme Court. As there are many cases coming from the People's Court to
which section 14 of Act 682 may be applied, we would not wonder if all
judges of first instance and cadastral judges shall be assembled in Manila,
waiting for their turns to sit in different batches as Justices of the Supreme
Court to try the respective cases for which they may be designated, thus
paralyzing the courts of first instance and cadastral courts.
"The picture of the resulting situation will not be very encouraging if we
have to express our judgment in the most euphemistic way.
"All what we have said in our dissenting opinion in this case regarding the
inhibition of the Chief Justice and four Associate Justices, we reproduce
here as valid against the constitutionality of the designation of the above-
mentioned five judges as temporary Justices.
"If the Chief Justice and the said four Justices cannot be legally disqualified
under the Constitution, if the first paragraph of section 14 of Act 682 is null
and void as unconstitutional, if said Chief Justice and four Justices cannot
disqualify or inhibit themselves from taking part in the consideration,
deliberation, hearing, trial, and decision of this case and, under the
Constitution, they are duty bound to continue sitting in this Supreme Court
for the purposes of this case, the logical consequence is that they cannot be
legally replaced by the five judges designated to ait in this Court or by
anybody else.
"It is our more considered opinion, based on a deep conviction, that in
order not to violate the Constitution the Chief Justice and the four Justices
alluded to should take part in all the proceedings of this case, and that the
designation of the five judges to take their place in the Supreme Court is
null and void and, as such, must not be given effect.
XI
"Section 4 of Article VIII of the Constitution provides:
" 'The Supreme Court shall be composed of a Chief Justice and ten
Associate Justices and may sit either in banc or in two divisions unless
otherwise provided by law.'
"The proviso 'unless otherwise provided by law' cannot be interpreted as
affecting the whole section as, otherwise, it will transgress the most
elementary rules of literary semantics and will lead us to the most absurd
consequences.
"The proviso applies exclusively to the provision authorizing the Supreme
Court to sit in two divisions. As one of the members of the Constitutional
Convention who had the opportunity and privilege of taking uninterrupted
active part in the making of the Constitution, including section 4 of Article
VIII thereof, we are in a position to state that the members of the
Constitutional Convention had not the least idea of applying the proviso to
any other provision of said section except the one relating to the authority
of this Supreme Court to sit in two divisions.
"If our intention was to apply the proviso to all of the provisions of said
section we could have expressed it directly and simply by placing the
proviso at the beginning of the section, separated by a comma from all the
remaining portions thereof. But that was not our intention. Our intention
was to grant the legislative power only the authority to permit or not to
permit by law the Supreme Court to sit in two divisions. So we placed the
proviso immediately after the provision it has to affect.
"The authority was limited as to whether or not the Supreme Court could
sit in banc alone or also in two divisions. We never intended nor could have
intended to apply the proviso to other parts of the section.
"For example, we did not intend to give the legislature power to enact a law
which may provide that the Supreme Court should sit in banc or not, for it
would be the height of inconsistency, absurdity, and folly to authorize the
enactment of a law never allowing the Supreme Court to sit in banc.
"All collective organism created by the Constitution or by law, unless
otherwise expressly provided, must be understood to act and function in
banc. Such is the case of the Senate, of the House of Representatives, of the
Commission on Appointments, of the Electoral Tribunals, of the
Commission on Elections and, naturally, of the Supreme Court.
"It is so as a general and fundamental principle in all democratic
institutions; and, if the principle would not suffice, the Constitution, in the
case of the Supreme Court, makes it expressly compulsory that it should
sit in banc.
"Section 10 of Article XIII of the Constitution provides:
" 'All cases involving the constitutionality of a treaty or law shall be heard
and decided by the Supreme Court in banc, and no treaty or law may be
declared unconstitutional without the concurrence of two-thirds of all the
members of the Court.'
"Therefore, if the proviso 'unless otherwise provided by law' in section 4 of
Article VIII of the Constitution can not affect the provision of said section 4,
concerning the power and authority of the Supreme Court to sit in banc, it
is only logical to assume that it cannot go beyond or above, or further than,
the remaining provision 'that the Supreme Court shall be composed of a
Chief Justice and ten Associate Justices.'
"This means that this provision as to the composition of the Supreme
Court, as far as Congress is concerned, must be considered as untouchable
and sacred. To it may adequately be applied the Rizalian admonition: noli
me tangere.
"This means that the Supreme Court must be composed of 'a Chief Justice
and ten Associate Justices', not otherwise. Never otherwise. There shall not
be more than 'a Chief Justice and ten Associate Justices'; but section 14 of
Act 682 increases the number with five judges, or five additional temporary
Justices. Instead of a membership of 11, as intended by the Constitution,
there will be 16.
"The practical result of section 14 of Act 682 in the present case is to create,
organize, form, or constitute a Supreme Court composed of six Associate
Justices and five judges of inferior courts.
"In enacting Act 682, Congress, in effect, had flagrantly violated, or at least,
to make it more lenient, amended section 4 of Article VIII of the
Constitution, a thing that is not permissible from the point of view of our
fundamental law.
"Under section 4 of Article VIII of the Constitution, a Chief Justice is an
essential member of the Supreme Court. That member has been eliminated
by Congress.
"Under the same section, ten Associate Justices are essential members of
the Supreme Court. Congress has eliminated four of them.
"Under the same section, only a Chief Justice and ten Associate Justices
may compose the Supreme Court. Congress decreed that it shall be
composed of six Associate Justices and five judges of inferior courts.
"Can there be a more flagrant violation of the Constitution?
XII
"The result of the action of Congress in enacting section 14 of Act 682 is to
create, form, constitute and organize, in fact, a second Supreme Court.
"There is no way of avoiding the actual reality.
"Although apparently everybody is referring to the Supreme Court as just a
single collective body, in fact, there are two Supreme Courts. This can not
be denied unless we are crazy enough to deny our own existence or that in
this world of ours truth and untruth, beauty and ugliness, life and death are
mingled to make keener our physical, mental, and moral perception of how
little we are when we are confronted with the infinite greatness of eternal
ideas.
"In the first place, there is the Supreme Court composed of a Chief Justice
and ten Associate Justices, created and functioning under specific
provisions of the Constitution. That is what we may designate as the
Supreme Court No. 1.
"In the second place, there is a Supreme Court as created and organized
under the authority of section 14 of Act 682, composed of six Associate
Justices, without a Chief Justice, and five judges of inferior courts. This we
may designate as the Supreme Court No. 2.
"The existence of two Supreme Courts, and more specifically, that of the
Supreme Court No. 2, because its presence has made possible the existence
of two Supreme Courts, is also a clear and flagrant violation of the
Constitution, because it only authorizes the existence of 'one Supreme
Court.'
"Section 1 of Article VIII of the Constitution provides:
" 'The judicial power shall be vested in one Supreme Court and in such
inferior courts as may be established by law.'
XIII
"Immovability is one of the essential and indispensable characteristics of
our system of administration of justice as established by the Constitution.
"Such characteristic is considered imperatively necessary to maintain the
judicial independence and to enable courts and judges to perform their
duties with impartiality and with that auster dignity and firm moral
equanimity which must naturally be expected of men who, besides having a
full understanding of the greatness and solemnity of their official functions,
amounting to that of a veritable mission, feel secure and independent in
their position and do not have to render any accounting for their acts to any
one except to the supreme judgment of their own conscience.
"The principle of immovability is expressly sanctioned in section 9 of
Article VIII of the Constitution, which provides that 'the members of the
Supreme Court and all judges of inferior courts shall hold office during
good behavior, until they reach the age of seventy years, or become
incapacitated to discharge the duties of their office.'
"As regards the members of the Supreme Court, they cannot be removed
from office except on impeachment and according to the solemn
proceedings provided in Article IX of the Constitution.
"The Constitution has guaranteed, not only the tenure of office of judicial
officers until they reach the age of seventy years, but that they cannot even
be transferred to a district other than the one to which they were appointed,
except only as provided by the Constitution itself.
"Section 7 of Article VIII of the Constitution provides:
" 'No judge appointed for a particular district shall be designated or
transferred to another district without the approval of the Supreme Court.
The Congress shall by law determine the residence of judges of inferior
courts.'
"This constitutional guarantee protects not only judges of first instance but
also judges of municipal and justice of the peace courts. If other courts
inferior in category to the municipal and justice of the peace courts are
created, the judges thereof will also be protected by the same constitutional
guarantee: to have a definite residence and not to be transferred to another
district unless with the approval of the Supreme Court.
"Section 14 of Act 682 violates the principle of judicial immovability and
transgresses against the principle of judicial independence.
XIV
"The Justices of the Supreme Court may only be removed from office by
impeachment as provided by the Constitution itself.
"The disqualification provided in the first paragraph of section 14 of Act
682, in effect, provides for the partial removal of the affected Chief Justice
and Justices without the benefits and guarantees of an impeachment
proceeding.
"The removal is partial, because they are actually removed from office in
regard only to the cases from which they are inhibited by disqualification.
Whether partial or total, the removal is null and void because it runs
counter to the Constitution.
"A justice of the peace court of the smallest town can not be transferred to
another town without the approval of the Supreme Court. But section 14 of
Act 682 removes the Chief Justice and four Associate Justices from their
functions in the case, and others of the same class, summarily and without
this removal being passed upon even by the Supreme Court itself. Not even
an executive fiat, ukase, or decree is necessary. Only a motion or, at least, a
mere call of attention by a litigant is necessary.
"Do Justices of the Supreme Court have less rights and principles 'than
judges of municipal and justice of the peace courts?
XV
"Section 14 of Act 682 is premised on a wrong philosophy as to the nature
of a judicial office.
"What was the object of providing in the first paragraph thereof of for the
disqualification of the Chief Justice and the four Associate Justices affected
thereto? Is it because Congress would not trust them to do justice in the
cases concerning which they are disqualified?
"Is it because Congress believes that the people will not accept the
judgment of said Chief Justice and said Associate Justices in the cases
referred to as the expression of their most conscientious judgment?
"That lack of faith in said Chief Justice and four Associate Justices is
unfounded and only shows the most unjustifiable inconsistency on the part
of the authors of section 14 of Act No. 682.
"Since said Chief Justice and four Associate Justices were appointed by the
President of the Philippines and their appointments were promptly
approved by the Commission on Appointments, a constitutional
organization representing both houses of Congress, the Senate and the
House of Representatives, Congress has absolutely no reason why it should
not have implicit faith in said judicial officers.
"We do not see why the people should not have full confidence that said
Chief Justice and four Associate Justices will do their duty faithfully,
loyally, impartially, in accordance with law and with the imperative dictates
of their own conscience. Their appointments and the confirmation of the
same should be taken as an official consecration. When they accepted their
appointments, they fully knew that they accepted a high mission for life.
Under such circumstances all presumptions that they will do their duty
should be favored. If they fail to do their duty, disqualification by law is not
the proper remedy. It is impeachment as provided by the Constitution.
"But there is absolutely not the least hint of any reason that could justify
their being disqualified and there is absolutely no reason why any doubt
should be cast on their actuation in this case or any other case.
"When they accepted their appointments, in fact, in taking their oath of
office, they made a solemn vow to dedicate their life in the service of justice,
and when a man feels the spell of justice the whole world must rely on him.
"Many years ago we appeared in a civil case tried in the Court of First
Instance of Manila. After the trial, Judge Pedro M. Sison, who was
presiding over the tribunal, publicly, in open court, in the presence of the
litigants and all the attorneys, instructed the undersigned to draft the
decision in the case. While our client was visibly elated, the opposing party
and counsel could not hide their consternation. It was expected that the
decision will be rendered in favor of our client. The next day we handed the
draft of the decision to Judge Sison who signed it without making any
amendment or correction. To the surprise of everybody, except ourselves,
the decision was rendered against our own client.
"The temptation to write the decision in favor of our client was indeed great
and almost invincible. We had at stake in the case our reputation as
attorney-at-law, the goodwill of our client, substantial legal fees. It was not
a very clear case. We could have written a defensible decision in favor of our
client. But over and above all these considerations, there was our devotion
to justice and the imperative mandate of our conscience. We did not
hesitate even from the very beginning what decision to write, although
during the whole day and whole night before we concluded drafting the
decision, we were frequently assaulted by the impulse of writing what
would better serve the interests of our client and of our own.
"It is because once you feel the charming spell of justice you will feel it
stronger everyday, to such effect that you will accept sweetly any personal
sacrifice to be true to her. In the same way as you are ready to face all
dangers to conquer the heart of the lady of your dreams or a mother will
accept all kinds of sufferings to insure the happiness of her child, a person
enamored with justice and consecrated to her noble service will show all
kinds of abnegation to make her always triumphant. There is a rapturous
glory in serving her that makes one forget every other thing else.
"Ehrlich says that 'there is no guarantee of justice except the personality of
the judge.' (Preie Rechtsfindung and freie Rechtswissenschaft.) The
President of the Philippines and the Commission on Appointments decided
that the Chief Justice and the four disqualified Associate Justices have the
personality that guarantees justice. The validity of that decision has not
been disputed. It has been accepted by the whole people. It carries with it a
kind of popular inunction, sacred in a democracy, and cannot be reversed
except by impeachment proceedings instituted by the House of
Representatives and tried by the Senate. The Constitution does not
authorize any other procedure. Until they are finally removed by
impeachment, they are entitled and duty-bound to exercise their
constitutional functions, prerogatives, and powers in the present case; and
any action that may have the effect of disqualifying them or depriving them
of the opportunity to take part in the disposition of this case, or in replacing
them, although temporarily, with judges of inferior courts, is a flagrant
transgression of the Constitution.
XVI
"Let no one be mistaken that in anything we say in this opinion any
reflection or slur against any of the affected five judges is intended. With all
and each of them we are bound with ties of the purest and most profound
personal respect and admiration. We are among the first ones to recognize
that they possess all the personal qualities to entitle them to sit with honor
in this Supreme Court or in any other supreme court in the world. Let it be
understood that our paramount and only concern is that our Constitution
be obeyed.
"Nowadays much attention is given to the serum acs, developed by
Bogomoletz, the sexagenarian Russian scientist, hailed as the veritable
elixir of youth, intended to make those benefited by it enjoy the traditional
longevity of the inhabitants of Abkhasia, n not well-known city near the
Black Sea. The seeking of youth is an old urge that has been spurring
humanity. For attaining it, the legendary Dr. Faustus of the Goethian
drama had even gone to the extreme of bartering his own soul to the devil.
And after Columbus-discovered the New World, many traversed the
Atlantic and went to the new vast empire in quest of the fountain of
perpetual youth. Although all efforts have failed to find it, it is in the New
World where the most marvelous device for keeping a youthful, healthy,
and vigorous nation was perfected: the Constitution of the United States of
America. That great document is the source of the dynamic youthfulness
which enabled America to attain that greatness which is the most amazing
spectacle of medern political history. As long as America sticks to her
Constitution and keeps faith with the principles and guarantees therein
contained, so long shall America continue showing the inexhaustible energy
that only a nation endowed with all the vigor of youth can show. Ours is a
young nation, but it will soon be a decrepit one unless we abide by all the
provisions of our Constitution, the only legal, moral, and political source of
national vitality, the strongest foundation of our nationhood.
"So long as we abide by the principles, ideals, and precepts embodied in our
Constitution, we may look to the future with confidence. Science may and
will usher the world in new eras. The age of uranium isotopes, of plutonium
and other fission products, may be supplanted by the era of cosmic ray,
unravelling new riddles of the universe and placing in man's hands
unsuspected new tremendous powers to make him a veritable king of the
creation. With such powers, man might boastfully claim that he has ceased
to be the slave of nature to become the master of the physical world
surrounding him. Those powers may be used for good and for bad, to build
or to destroy, to metamorphose and to metaontose the physical world, to
offer conveniences and luxuries to make happy peoples and nations, or for
the wholesale annihilation of great human conglomerations. The new
tremendous powers will create new menaces and dangers to our national
security and well-being. But so long as the reign of law remains supreme,
we have nothing to be afraid of. In order that law may continue reigning
with absolute and indivisible authority, it is necessary that all the
component parts of mankind should abide by the pledge of obeying it. It is
the obligation of our government and our people, in that scheme of
universal moral duty, to see to it that the law of the land be kept in
condition to meet successfully all attacks and assaults, all defiances and
challenges. Let us not forget that the Constitution is the basic and
paramount law of our land.
"Supposing that the material world should have the power to will and
decide to disregard the universal law of gravitation, the laws of centrifugal
and centripetal forces, the laws of cohesion and fission, or any other law
which forms part of the physical constitution which rules the behavior of
matter and energy, the resulting cosmic catastrophe will certainly defy the
wildest imagination. It is enough to say that the harmony and symmetry we
are beholding in the movements and processions of the stars and other
heavenly bodies shall be replaced by a cosmic anarchy; and all that
indescribably beauty of nature, which is one of the strongest reasons why
we feel it worthy to cling to life, shall be no more and be substituted by the
most horrid disorder in the midst of universal disintegration.
"The physical world is not free to disregard the laws that are embodied in
its constitution, but peoples, being agents of free will, are at liberty to
ignore and even to trample upon their own constitution. Beset by opposing
and contradictory tendencies, they may choose to follow the way more
suited to a collective harakiri by eliminating the legal bridles established in
their fundamental laws. Shall we, shall our people disregard the
Constitution which embodies the collective philosophy of our national life?
Are we rash enough to invite the resulting political disintegration? Are we
so reckless as to drive our country to the brink of juridical disaster? Shall
we plunge ourselves into that moral abyss where the Constitution is
replaced by unconstitutional acts, processes, and practices, or start
lawlessness?
"We do not expect or pretend that what we say here or what we have said or
might say in other opinions to be acceptable or agreeable to others, would
satisfy the good taste of many, or could or should be understood by
everybody. Although the ideas we are expressing or trying to express appear
in our mind with crystal-clear definiteness and precision, our ability to
translate them into words is limited and language itself as a tool of
expression is full of limitations. Besides, we are just beginning to learn
English, a means of expression which in our early childhood we hated as a
symbol of imperialism and one of the instruments of oppression of the
political masters who forced upon our people their rule. Thanks to
developments of recent history, only a few years ago we felt justified in
beginning to revise our old deep-rooted attitude, when we saw that the
same language can also be the instrument of our national freedom. That is
the reason why very often we can hardly make a hint or vague suggestion of
the concepts and thoughts boiling in our mind. But we hope that in a
question of so momentous importance such as the one we arc discussing,
involving the Constitution, the Supreme Court, the judicial independence,
and other vital principles, there will be enough persons who will
understand us, not to make completely useless and futile the constitutional
precept making compulsory that 'any justice dissenting from a decision
shall state the reasons for his dissent' (sec. 11, Art. VIII, Constitution of the
Philippines) which the authors of the Constitution adopted believing that
the people will be benefited by knowing and preserving the reasons of
dissenting opinions, as the validity of the doctrines and rules enunciated in
the majority opinions of the Supreme Court can only be successfully and
profitably tested by fully knowing the reasons of the Justices who disagreed
with them.
XVII
"Not because our opinion will affect some of our more esteemed and
respected friends, some of the finest citizens of our country, some of the
best elements of humanity, shall we hesitate to unflinchingly express our
honest opinion that they are sitting in this Supreme Tribunal in illegal
usurpation of positions to which, under the provisions of our fundamental
law, they are not entitled, because the positions are not vacant and still
uninterruptedly occupied by men who were duly appointed and qualified
and who cannot be replaced or displaced while they have not reached the
age of seventy years, or been dismissed for grave misbehavior through
solemn proceedings of constitutional impeachment, and have not rendered,
in obedience to the implacable laws of nature, their inevitable tribute to the
ghastly empress of the valley of eternal silence.
"Over and above all personal considerations, over and above all reasons of
expediency or convenience, we must not shirk our part in upholding the
precepts and mandates of our Constitution. We know that the immediate
result of our theory, if the same is sustained, will be the ousting of the five
judges above referred to from the positions they are illegally occupying in
this Supreme Court. But no matter how much it may hurt us to express a
conviction that will give such a regrettable result, we cannot help it for we
must have to remain loyal to our oath of office and maintain supreme the
Constitution as an indispensable cornerstone of the political, social and
legal structure of our people. We will be recreant to our official duties if we
should remain unmoved, indifferent, passive, when, as in the present case,
such a wanton assault has been launched in utter disregard of the
Constitution, against the integrity, the independence, the stability, of the
last and sturdiest bulwark of all rights and liberties in this country of ours,
the Supreme Court.
"Let us not allow our high regard for Congress, our respect for the wisdom
it ordinarily shows in the fulfillment of its legislative duties, our personal
affection for the senators and representatives composing it and the high
concept we have of their personal ability, of their intellectual stature, of
their devotion to the best interests of the people, to blind us into accepting
legislative infallibility in the enactment of section 14 of Act No. 682.
"The men composing Congress are made of common clay and, as children
of men, are liable to commit mistakes and errors. Section 14 of Act No. 682
shows one of the greatest blunders that the legislative power has ever
committed since democracy was implanted in our country. It is a blunder
that has shaken in its foundations the highest tribunal of the country and,
in fact, the judicial power itself. That blunder is a direct attack against one
of the most vital organisms created by the Constitution as an essential part
of a government that shall embody the ideals of the Filipino people,
'conserve and develop the patrimony of the nation, promote the general
welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty, and democracy.'
"As it happens to all persons and all human institutions, Congress has also,
we must confess, its moments when it cannot see light. Even in the best
windows of the most transparent crystal there are mullions and transoms
which obstruct the passage of solar light. Homer sometimes slept. The
brightest minds produced by humanity had been beclouded by concepts
and ideas which successive generations, taught by time and experience,
have found to be false. Even a physical error, scientifically demonstrable,
was elevated for sometime to the category of an intolerant dogma for not
accepting which Galileo was imprisoned after a famous trial. Because
Congress failed to see light when it enacted section 14 of Act No. 682 is no
reason why the members of the Supreme Court should blindly follow suit
and refuse to see the light which Congress failed to see and which now is
shown to us without any kind of obstruction. Of course, it is within the
power of this Court to refuse to see light. But then the question is whether
the Supreme Court must or must not do its duty. In our opinion, there
cannot be two alternatives. There is only one path from which we cannot
conscientiously swerve. Let us not allow the common man in the street to
remind us: 'Walang bulag pa sa naghubulag-bulagan; walang pinaka bingi
katulad ng nagbibingi-biñgihan.'
"To our mind, in the enactment of section 14 of Act 682, as we have shown,
the violation of the precepts of the Constitution is so clear, so evident, so
flagrant, that we must be actually blind not to see it. The violated
constitutional precepts are specific, clear, unsusceptible to ambiguities and
confusions. They do not belong to the great generalities the conduct and
significance of which, according to Mr. Justice Cardozo, 'vary from age to
age.'
"We conclude and vote that it be declared that: (a) Section 14 of Act 682 is
null and void, being unconstitutional; (b) the Chief Justice and four
Associate Justices who inhibited themselves to take part in this case are
constitutionally qualified find duty-bound to intervene in this case; (c) the
five judges of inferior courts designated to sit in this case in their place are
doing so in illegal usurpation of positions which are not vacant and,
therefore, they should be ordered to quit them; and (d) the Supreme Court
cannot legally function as constituted in this case, under penalty of
avoidance and nullity of all its actions in the same."
Since the above opinions have been written, we had occasion of re-stating
our positions against the validity of section 14 of Commonwealth Act No.
682 in several cases.
The following is our written opinion, also unpublished, in the case of
People vs. Sison, L-398:
"We object to the Chief Justice and four Associate Justices concerned
inhibiting themselves from taking part in the cognizance of this case and,
therefore, we dissent from the action taken by the Supreme Court in
authorizing, permitting, or consenting to the transfer of this case to the
second or special Supreme Court created, organized, constituted, existing
and functioning in accordance with section 14 of Act No. 682.
"The creation of said special Supreme Court, besides being null, void ab
initio, and irretrievably and flagrantly unconstitutional, is essentially
inimical to public interest, gives rise to confusion and chaos in Philippine
jurisprudence, and is liable to shake public confidence in the
administration of justice.
"The panegyrists of the Nippon system of government, under which a
special criminal court was created during enemy occupation, may rest
satisfied with the special Supreme Court brought to existence, if not to
duplicate the abhorrent achievements which were strongly condemned in
Peralta vs. Director of Prisons, G. R. No. L-49, at least, to sanction and
perpetuate the judicial philosophy which promotes the organization of
special courts or tribunals to try specific criminal cases in which the
government or the state is interested in securing preconceived objectives,
no matter how harmless, innocent, or well intended they may appear, as in
the case of the special Supreme Court in question, or how pernicious,
sinister, of evil-looking as the special criminal court under the Japanese
regime.
"The promachoi of the insolent international fraud which was flung to our
face and to the face of the whole world under the resounding name of
Greater East Asia Co-Prosperity Sphere may relish in the revival and
survival of the skewed and fascistic ideology underlying the organization of
special courts to try special criminal cases in order to serve special state
aims and purposes.
"The servile kudizers of the pretended efficiency of dictatorial systems may
loudly extol the, virtues of a law which, in the belief that it is meeting an
unusual situation, unforeseen by the members of the Constitutional
Convention, boldly supersedes express provisions of the Constitution, to
create a second special Supreme Court to wrest and supplant the
jurisdiction of the legitimate Supreme Court, existing and created under the
fundamental law, on a group of important cases, in which the state is vitally
interested. We cannot and we do not deny their perfect right and freedom
to do so. But, at the same time, we believe that all those who, like us, are
committed to the upholding of the tenets of democracy, liberty, and justice,
as sanctioned and proclaimed in our Constitution and, at the cost of untold
human sufferings and millions of lives sacrificed in the greatest holocaust
known in human history, were consecrated in the United Nations Charter,
should exert the most unstinted efforts to oppose all attempts to make their
wrong ideology prevail, and must resist, repel and combat any usurpation
of the constitutional functions and prerogatives of the Supreme Court.
"The evil effects of the existence of the special Supreme Court in question
have been shown at the very beginning and from the very first decision ever
rendered by said special Supreme Court The first and only decision
rendered so far by said special Supreme Court, the one in Duran vs. Abad
Santos (G. R. No. L-99), advances legal doctrines which are in conflict with
those adopted and sanctioned by this constitutional Supreme Court in the
two Teehankee cases (Nos. L-101 and L-278). This is just the rumbling and
ominous protasis of a judicial drama in which this Supreme Court, created
and functioning under the Constitution, will set a line of legal and judicial
principles, doctrines and rules which may and will be opposed by an
antagonistic line of conflicting or contradicting principles, doctrines and
rules set up by the special Supreme Court, created by legislative fiat and in
pursuance of section 14 of Act No. 682. Both lines are supposed to be
binding upon all inferior courts, upon all government agencies, upon all the
people in general. Now the confusing and unanswerable question is: which
line is to be followed? It is beyond our ability to answer. But this inability to
answer the question does not make us immune from shuddering at the
catastrophic consequences of the judicial chaos and anarchy which will be
enthroned.
"Each line of decisions, with the corresponding cohort of legal doctrines,
judicial principles, and judicial rules, shall be looked upon as the last work
of court's wisdom and as final authority in our jurisprudence. Each one
vying for acceptance, support and following. Each one pretending to
represent the last, conclusive, permanent expression of legal truth. Each
one pointed as a concrete symbol of the moral sense of our people, as a
monument to the reign of law, as the happy reality of justice in action. But
then the dual lines do not follow parallel directions, where conflict is
indefinitely avoided. The conflict is not even limited to points of contact in
crossed directions. The two lines are running in diametrically opposite
directions, and the decisions are clashing in open battle as two belligerent
armies.
"Each Supreme Court, this one existing in accordance with the Constitution
and the special Supreme Court created by legislative fiat in violation of the
Constitution, shall emulate judicial leadership. The resulting confusion
cannot be betoned enough. The highest tribunal has been created by the
Constitution to settle finally all legal conflicts, all litigations, all differences
of opinion among inferior tribunals. But who will settle the conflicts of
opinion between two different, separate, opposing Supreme Courts, each
one claiming to have the paramount authority and as the exclusive
repository of the last word in Philippine law and jurisprudence?
"Both tribunals carry the appellation 'supreme.' Each one is by
antonomasia 'supreme.' If they are really, they are reciprocally destructive.
'Supreme' means the highest, dominant, utmost, greatest, unexceeded,
ultimate, last, final, pre-eminent, foremost, peerless. Therefore, logically,
both cannot coexist simultaneously. They are mutually self-repelling, self-
annulling. It is the extreme of betise to admit the coexistence of two
'supremes' in the same category or order of things. The essential
characteristic of a 'supreme' thing is unicity, oneness, uniqueness. It is
repugnant for it to accept a duplicate, a rival, a co-equal. It cannot have a
match, a mate, a peer. No matter of logodoedaly may justify the coexistence
of twin 'supremes'. The wildest stochastic adventure in the realm of fiction
and fantasy will be unable to hunt such a mental teratologic product.
"In support of our stand against the constitutionality of section 14 of Act
No. 682 and of this dissent, we reproduce here our dissenting opinions in
De la Rama vs. Misa (G. R. No. L-263), one dated February 27, 1946, and
the other dated April 1, 1946.
"For the sake of truth, we wish to make it of record that there are Justices
who are of opinion that section 14 of Act No. 682 only grants the affected
Justices a discretionary power to inhibit themselves, if they choose it to be
wise, and, therefore, does not entail a legal and obligatory disqualification,
although we do not agree with such interpretation. And there are several
Justices who are ready to support with their votes our stand against the
constitutionality of said section 14 of Act No. 682 but decided not to cast
said votes because we failed to obtain the support of the two-thirds
required by the Constitution in order that a law may be declared
unconstitutional. (Art. VIII, sec 10, of the Constitution.)"
The decision in this case, in settling definitely a thorny and long discussed
question, like our decision in the case of Tavora vs. Gavina, L-1257, and
resolution upon the motion for reconsideration filed therein, sets a new
landmark in the progress towards the affirmation of the principle of
stability as one of the essential safeguards of judicial independence.
The Supreme Court has always been reluctant to use the tremendous power
to annul a law or provision of law. Whenever possible, it has decided all
doubts in favor of constitutionality. With all presumptions of validity in
favor of the present decision, after mature deliberation, the Supreme Court
had arrived at the conclusion that there is no other alternative than to
exercise its power to declare the section in question null and void, being
violative of the fundamental law.
The power to set aside a statute in conflict with the Constitution is inherent
in the judiciary. The first enunciation of this far-reaching doctrine, more
than any other achievement in his outstanding judicial career, entitled
Chief Justice Marshall to the greatness in American juridical history
accorded him by his and succeeding generations. Because the doctrine
lacked support in the specific provisions of the American Constitution, and
it was rather an implementation thereof, the subject continued to be
debated by jurists even long thereafter. At the time the Philippine
Constitution was being framed, the controversy was still alive. To put an
end to it in our country, the Convention invested expressly the Supreme
Court the power to invalidate by a two-thirds majority unconstitutional
laws or provisions of law. In the United States, the Supreme Court exercise
the power by simple majority. The enduring benefits derived by our people
from the fact that Congress may not enact laws transcending the bounds of
the Constitution and that transgressions of the fundamental law may be
checked by the Supreme Court, as the ultimate guardian of the
Constitution, are to be attributed to the initiative, creative genius, foresight
and boldness of Chief Justice Marshall, who can justly be considered as one
of the benefactors of humanity. Contrary to the opinion of superficial minds
that measure the stature of jurists by their ability to clutter their
intelligence by a vast store of old decisions, precedents and authorities, that
buttress their works by numerous citations, exhibiting painstaking research
and great capacity of memory, that have ready solutions to current legal
problems by fitting to them maxims evolved by former judges and jurists
facing problems of generations past, the truly legal luminaries are those
whose intellectual and moral grandeur is built on original contributions to
jurisprudence and the progress of law. It was said that Chief Justice
Marshall, upon enunciating new principles of law, left to Justice Story the
task of research to find precedents and authorities to support them.
Originality and universality are the main characteristics of the work of great
men in the field of law and, in fact, in all other fields of human endeavor.
Thales, Phythagoras, Hippocrates, Socrates, Aristotle, Archimedes, Christ,
Thomas Aquinas, Grotius, Galileo, Phidias, Praxiteles, Bach, Mozart,
Shakespeare, Paracelsus, Michaelangelo, Da Vinci, Columbus, Magellan,
Kepler, Newton, Cervantes, Lavoisir, Rembrandt, Linneaus, Voltaire,
Darwin, Pasteur, Edison, Nikola, Tesla, Mendel, Faraday, Madam Curie,
Rizal, Gandhi, Brandeis, Franklin, Delano Roosevelt, Einstein, are among
the towering figures of humanity because, by their initiative, creative
genius, redoubtable courage; high ideals and foresight, they have
contributed something original and of widespread or universal effects in
their respective spheres of activity. They are the pathfinders, the trail
blazers, the leaders that discovered new worlds and opened new horizons to
mankind. One of thorn is Justice Holmes who was known as the "Great
Dissenter," because his legal ideas happened to be too far advanced to be
understood and followed in the stage of legal development of his time.
We are not to end this opinion without yielding to the temptation of
quoting the following editorial of The Lawyers' Journal of September 30,
1946:
"COLLABORATION AND THE SUPREME COURT
"Unique and to that extent unparalleled in the history of the judiciary of
democratic countries is the recent designation of seven judges of first
instance to sit without much ado in the Supreme Court. The object is to
enable them to hear in place of seven Justices, including the Chief Justice,
only certain collaboration cases. The move brings to an amusing, if not a bit
ludicrous, climax the judicial farce that has been going on for some time in
the Philippines in the name of collaboration. For one thing, it makes this
country the laughing-stock of the world; for another, it holds up to ridicule
and contumely our highest tribunal which has been and should always be
the depository of our greatest respect and confidence.
"Why seven Justices should inhibit themselves or allow themselves to be
inhibited from hearing so vital, fundamental, and transcendental questions
as suspended allegiance, suspended sovereignty, and change of sovereignty,
without regard to the persons involved, is beyond the comprehension of the
ordinary citizen. No less is it beyond the comprehension of the ordinary
lawyer because he knows that there is nothing in the Philippine or
American Constitution that empowers Congress to prohibit certain
Supreme Court Justices from hearing cases of paramount importance. On
the contrary, our Constitution categorically confers on the Supreme Court
the right to 'review, revise, reverse, modify, or affirm * * * final judgments
and decrees of inferior courts.' There is not the slightest hint or suggestion
that in doing so the Supreme Court must be reconstituted or packed with
non-members.
"Where did so extraordinary and unheard-of authority to designate
'temporary justices' emanate? Strangely enough, from a simple act of the
then moribund Commonwealth Congress, some of whose leading members
were themselves alleged collaborators. The act created what is known as the
People's Court and its adjunct, the Office of Special Prosecutors. Before the
High Tribunal the question of the law's constitutionality was raised once
collaterally, but the Supreme Court, presumably out of delicacy, declined to
pass upon it squarely.
"Posed Chief Justice Marshall: 'If an act of the legislature, repugnant to the
Constitution, is void, does it, notwithstanding its invalidity, bind the courts,
and oblige them to give it effect? Or, in other words, though it be not law,
does it constitute a rule as operative as if it was a law?' It's a pity the great
American jurist did not answer his own question with the backing of his
learning and authority, because there is no doubt that it has a direct and
important bearing on the present case. However one may look at it, the act
is utterly repugnant to the Constitution.
"Reads section 14 of the People's Court act: 'Any Justice of the Supreme
Court who held any office or position under the Philippine Executive
Commission or under the government called Philippine Republic may not
sit and vote in any case brought to the Court * * * in which the accused is a
person who held any office or position under either or both the Philippine
Executive Commission and the Philippine Republic or any branch,
instrumentality and/or agency thereof?'
"The recurring question is: Where did the defunct Congress derive its
authority to limit or restrict the power of a constitutionally co-equal body?
Certainly not from the Constitution which alone can confer it. 'Congress
and the President, like the courts, possess no power not derived from the
Constitution.' So ruled the United States Supreme Court. On the accepted
theory of separation of powers, the Supreme Court stands or should stand
supreme in all judicial matters as well as in all matters affecting the
judiciary. So careful were the framers of our Constitution in safeguarding
the independence of the judiciary that they even banned the old 'rigodon de
jueces.' Enjoins the Constitution: 'No judge appointed to a particular
district shall be designated or transferred to another district without the
approval of the Supreme Court.' If the mere transfer of a district judge
requires more than legislative or executive approval, how much more when
it comes to replacing or substituting Justices who were facing no judicial
investigation or impeachment?
"And yet, here is a law, supposedly valid, which not only circumscribes the
power of the Supreme Court, but what is worse casts a gratuitous reflection
on the honesty, integrity, and impartiality of its members. Here is a law
which grants authority to the Chief Executive to designate even cadastral
judges to sit as 'temporary justices' in the Supreme Court and supplant
the bona fide members without the courtesy of denunciation or
impeachment. With all his strength and popularity the late President
Roosevelt did not wield half that power despite the mandate he had
received from the electorate and the willingness of the American Congress
to help him push through his New Deal program.
"Supposing all the Justices had served during the enemy occupation. Would
not the law have the effect of destroying a constitutional body by setting up
through presidential designation a temporary Supreme Court with
temporary members who may not even be legally qualified to sit there and
whose designation need not have the approval of the Commission on
Appointments, another constitutional body? Imagine a Supreme Court thus
constituted? As a matter of fact, the new 'Justices' now form the majority
and can easily overrule the four remaining Justices. Their verdict will be
cited as the Supreme Court's decision when in reality it is not.
"Another feature of the Act, which some judges and practising attorneys
believe clearly violates the Constitution is that under it two men charged
with the same crime must be judged by two different bodies of the Supreme
Court: one real, permanent, and constitutional; the other, temporary and
unconstitutional. It violates the equality-of-treatment clause contained in
the first section of the Bill of Rights. Provides this clause: 'nor shall any
person be denied the equal protection of the laws.'
"In the instance given, how can there be equal protection of the laws when a
fictitious or temporary Supreme Court with conceivably prejudiced
members, disguised by statute as Justices, will pass judgment on your case
if you served under the Philippine government during the enemy
occupation, whereas a person who did not serve will be judged by the true,
de jure, Supreme Court?
"Those who have studied the history of the Federal Supreme Court may well
wonder if so outspoken and independent a body would have tolerated so
flagrant an encroachment on its powers and prerogatives to its obvious
shame and humiliation. They may well wonder and even seriously doubt if
that august and courageous body would have sanctioned tacitly the validity
of an act which, in practice, tends to abolish it by the simple strategy of
creating in its stead a temporary body whose members have not and
possibly could not have legally qualified as such."
FERIA, J., dissenting:
I dissent.
The legislative powers of Congress granted by the Constitution on all
matters are general and absolute, subject only to the limitations placed
upon them on some particular subject, and therefore Congress is free to
legislate on matters not expressly or by necessary implication restricted by
the Constitution.
"The rule of law upon this subject appears to be that, except where the
Constitution has imposed limits upon the legislative power, it must be
construed as practically absolute, whether it operates according to natural
justice or not in any particular case * * *. Any legislative act which does not
encroach upon the power apportioned to the other departments of the
government, being prima facie valid, must be enforced, unless restrictions
upon the legislative authority can be pointed out in the Constitution, and
the case shown to come within them." (Cooley's Constitutional Limitation,
7th ed., pp. 235, 237.)
To the question, whether or not Congress had power to add to the pre-
existing grounds of disqualification of a Justice of the Supreme Court, the
affirmative is evident, because there is no limitation placed by the
Constitution on the general legislative power of Congress on the matter.
It is self-evident that a law on disqualification of judges, provided for in
sections 8 and 608 of the old Code of Civil Procedure and incorporated in
Rule 126 of the Rules of Court, is not a law on pleading, practice, and
procedure, but a substantive law. The provision of the old Code of Civil
Procedure deals not only with pleading, practice, and procedure, but also
with substantive laws, such as those relating to adoption, statutory
construction, guardianship, causes of disqualification of judges, and others;
and yet most of them have been substantially, if not literally, incorporated
in the Rules of Court, for convenience's sake, and not because this Court
has power to alter or modify them. And our Constitution does not contain
any limitation on the power of Congress to legislate on the matter. On the
contrary section 2, Article XVI of the Constitution provides that "All laws of
the Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines, thereafter such laws shall remain
operative, unless inconsistent with the Constitution, until amended,
altered, modified or repealed by the Congress of the Philippines." As said
section 8 of the old Code of Civil Procedure as incorporated in Rule 126 is
not inconsistent with the Constitution, and the majority admits it in stating
in the decision that "the framers of the Constitution deemed it fit, right and
proper that said provisions shall continue to govern the disqualification of
judicial officers", it follows that the Congress has power to enact section 14
of the People's Court Act adding thereto other causes of disqualification.
The same is true even assuming that the laws providing for disqualification
of judges are rules of pleading, practice and procedure, and have been
repealed as statutes, and declared Rules of Court subject to the power of the
Supreme Court to alter or modify the same, according to section 13, Article
VIII, of the Constitution, because the same section 13 provides that
"Congress shall have power to repeal, alter or supplement the rules
concerning pleading, practice and procedure.
(a) It is argued in the decision of the majority that section 14 of the People's
Court Act is repugnant to Article VIII of the Constitution, which provides in
its section 4 how the Supreme Court shall be composed and how it may sit,
and in its section 9 ordains that they "shall hold office during good
behavior, until they reach the age of seventy years, or become incapacitated
to discharge the duties of their office."
This contention is not tenable because it is based on a wrong premise. The
Constitutional provision that the Supreme Court shall be composed of
eleven Justices who may sit either in banc or in division, has no bearing on
the question of disqualification of some members therein; and the
designation of a judge of the lower court to sit or temporarily act as a
member of the Court in a particular case does not affect the composition of
the Court. By such designation, the members of the Supreme Court is not
increased and the sitting in banc or division is not thereby affected, because
the judge designated takes the place of the disqualified member in the
disposition of the case in which the latter can not take part. And the
provision of section 9 of said Article VIII that the members of the Court
shall hold office during good behavior until they reach the age of seventy
years or become incapacitated to discharge the duties of their office, is not
inconsistent with the designation of another to temporarily act in the place
of the member disqualified, because the latter is not thereby removed or
deprived of his rights and emoluments as such, and has the right to
continue exercising his powers and duties in all other cases in which he is
not disqualified to act.
A contrary construction of the above-quoted provision of sections 4 and 9
of Article VIII would lead to the absurdity that Congress can not absolutely
legislate on the matter of disqualification, and the existing laws on the
matter, such as the disqualifications provided for in Rule 126, can no longer
be enforced after the approval of the Constitution, because it would be
repugnant thereto. It is evident that "due process of law requires a hearing
before an impartial and disinterested tribunal. Every litigant, including the
State, in criminal cases, is entitled to nothing less than the cold neutrality of
an impartial judge, and the law intends that no judge shall preside in a case
in which he is not wholly free, disinterested, impartial, and independent. To
this end reasonable regulations must be made by the legislature in the
matter of prescribing certain disqualifications of a judge to act." (30
American Jurisprudence, section 53, p. 767.) The provisions of the
Constitution that so many members shall compose the Supreme Court who
may sit in banc or in division, and shall hold office during good behavior
until they reach the age of seventy years old or become incapacitated, does
not mean that they shall sit uninterruptedly as such in all cases, at all cost,
and without any exception, for it would be an absurdity to presume that
each and every one of them must necessarily and uninterruptedly act in
each and every one of the cases submitted to the Court, irrespective of
whether they are physically or legally incapacitated or disqualified to act.
Under such farfetched contrary construction, the provisions of section 8 of
the old Code of Civil Procedure on disqualification of judges, incorporated
in Rule 126 of the Rules of Court, must be considered as repealed by the
Constitution; for if the Constitution prohibits the enactment by Congress or
some other law-making power of a law providing for disqualification of
judges including Justices of the Supreme Court, said Rule 126 can not be
continued in force by section 2, Article XVI of the Constitution, on which
the majority relies to hold that said disqualifications continue in force.
Because said section 2 prescribes that only laws then in force which are not
inconsistent with the Constitution shall continue in force until the
inauguration of the Commonwealth, and remain operative thereafter. It
reads as follows: "All laws of the Philippine Islands shall continue in force
until the inauguration of the Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless inconsistent with this constitution,
until amended, altered, modified, or repealed by the Congress of the
Philippines." On the other hand, if the provisions on disqualification of
judges contained in Rule 126 are not inconsistent with the Constitution and
they are continued in force by section 2, Article XVI thereof, they may
validly be amended, altered, or modified by Congress as expressly provided
therein; and therefore section 14 of the People's Court Act, which is but an
amendment thereof by Congress in so far as treason cases are concerned,
can not be repugnant to the Constitution.
The other ground advanced in the decision in support of the conclusion that
section 14 of the People's Court Act is unconstitutional, is that it deprives
the Supreme Court of its appellate jurisdiction, among others, over certain
cases where the penalty may be death or life imprisonment, conferred by
section 2 (4) of Article VIII of the Constitution. According to the decision,
the appellate jurisdiction of the Supreme Court may be exercised only by
the Chief Justice and ten Associate Justices, and sections 4 and 5 of said
Article VIII do not admit any other composition of the Supreme Court; and
"to disqualify any of these constitutional component members of the Court
* * * is nothing short of pro tanto depriving the Court itself of its
jurisdiction," for the deprivation of a member of the Court of his judicial
powers is equivalent to the deprivation of powers of the Court itself.
This argument or contention is clearly untenable, because it is based on a
misconception or confusion of the jurisdiction of the Supreme Court as an
institution with the judicial powers of its members. There is a self-evident
distinction between the Court as an institution, and the members who
preside the Court in order that the latter may act The Supreme Court as an
institution, is different from the members thereof. The Supreme Court may
exist with its jurisdiction even though no Justice has yet been appointed to
preside it. The individual members of the Supreme Court may be
disqualified to act by reason of relationship with the parties or interest in
the subject matter, etc.; but the Court can not become disqualified. Even
though one or more of its members are incapacitated physically or
disqualified legally to act, the Court may still exercise validly its own
jurisdiction. The members of the Court individually have no jurisdiction to
try and decide cases, but the jurisdiction belongs to the Supreme Court as
an entity or institution. Therefore the disqualification as well as the
physical incapacity of one or more of the members of the Court, does not
and can not deprive the Supreme Court of its jurisdiction.
In case of physical incapacity or legal disqualification of some members of
this Court and there is no quorum, the Governor General before and the
President now are authorized by Congress to designate judges of the lower
court to sit temporarily in the Supreme Court. And although the majority of
the members of the Court are not in such cases regular but designated
temporarily to sit thereof in a particular case, the Court so constituted is the
same Court established or recognized by the Constitution exercising the
same jurisdiction. The framers of the Constitution, in providing that the
Supreme Court shall be composed of one Chief Justice and ten Associate
Justices, could not have the intention of inhibiting Congress from
authorizing the designation of judges of the lower court to act temporarily
in case some of the regular members of the Court are, physically or legally,
disqualified to act, and the able or qualified ones are not sufficient to form a
quorum and act; otherwise the functions of the Court in such cases would
be paralized for a certain period or perhaps for a long period of time.
(b) There is nothing to support the conclusion in the decision that Congress
can not empower the President to designate a judge to sit temporarily as a
member of the Supreme Court in case of disqualification of some members
thereof, based on the ground that section 9, Article VIII of the Constitution
requires that members of this Court must be appointed by the President
with the approval of the Commission on Appointments. Because it is
obvious that said section 9, Article VIII, refers to regular members of the
Supreme Court, and does not apply to judges designated temporarily to act
in certain cases as Justices of the Supreme Court in lieu of those
disqualified, in order that this Court may have a quorum and act. To
require the confirmation by the Commission of the judge so designated by
the President would be to make the designation tardy for the purpose
intended, and the person so designated regular member of the Supreme
Court thereby increasing the number of Justices of this Court.
(c) The same may be said as to the argument that judges of the lower courts
can not be designated by the President to sit and act temporarily as Justice
of the Supreme Court, because they do not have the qualifications which,
according to the Constitution, a person must have in order that he may be
appointed Justice of the Supreme Court. That section 6, Article VIII, of the
Constitution, which prescribes that "no person may be appointed member
of the Supreme Court unless he has been five years a citizen of the
Philippines, is at least forty-five years of age, and has for ten years or more
been a judge of record or engaged in the practice of law in the Philippines,"
refers to regular members of this Court, is too clear to need any
demonstration. As the Constitution requires that a regular member of the
Court must have such qualification, and is silent on the qualifications of
those who may be designated by the President to act temporarily in lieu of
one of the members disqualified, it evidently follows that Congress had
power to authorize the President to designate any judge of the lower court
although he may not have the qualifications of regular members of the
Supreme Court, not only because of the maxim inclusio unius est exclusio
alterius, but because of the principle that Congress has ample and general
legislative powers on all matters, unless they are limited or restricted by the
Constitution expressly or by necessary implication.
Furthermore, as judges of the lower courts must have previously been
appointed as such by the President with the approval of the Commission on
Appointments, it is to be presumed that they are qualified not only for the
position for which they are appointed, but also to be designated by the
President to sit temporarily as Justices of the Supreme Court by the
President as contemplated by law, and it may also be presumed that the
President will only designate, among them, those who, by ability and
experience, are better qualified.
If, as contended, an act of Congress that empowers the President to
designate judges of the lower court for that purpose is repugnant to the
Constitution, because said judges do not have the qualifications a member
of the Supreme Court should have, and their designations are not approved
by the Commission on Appointments, section 8 of the old Code of Civil
Procedure incorporated in Rule 126 could not be applied to Justices of the
Supreme Court and enforced, contrary to what the decision holds in order
to avoid the absurdity which necessarily follows from the majority theory.
Because section 2 of Commonwealth Act No. 3, a complementary provision
of Rule 126 as applied to Justices of the Supreme Court, which authorizes
the President to designate judges of the Court of Appeals to sit temporarily
as Justices of this Court in case of disqualification of some members
thereof, should have to be considered as repugnant to the Constitution
under the same theory. If Rule 126 of the Rules of Court and section 2 of
Commonwealth Act No. 3 are not inconsistent or repugnant to the
Constitution, there is absolutely no reason why section 14 of the People's
Court Act No. 682 should be considered as unconstitutional.
I believe that the provisions of section 14 under consideration are
objectionable and defective. First, because they assume that the Justices
who have occupied positions during the Japanese occupation are
disqualified, either because they are presumed to be partial to indictees
who had occupied offices or positions during the Japanese occupation, or
because they would be in an embarrassing position should they vote for
defendant's acquittal; and second, because they empower or enable the
President of the Commonwealth before, and of the Republic now, to select
and designate the judges of the inferior courts which should temporarily sit
as Justices, with the qualified members of this Court, in each particular
treason case, instead of empowering the President to designate, once and
for all, the judges who should sit temporarily as Justices in all cases in
which the Justices of this Court are disqualified for having occupied public
office during the Japanese occupation. But I can not, to my regret,
subscribe to a decision which declares said section 14 unconstitutional.
The advisability or unadvisability, as well as the reasonableness or
unreasonableness of a law is for the legislative and not for the judicial body
to determine, unless the unreasonableness constitutes a violation of the
constitutional limitations. Courts should construe and apply the law, but
can not legislate or encroach upon the legislative power of the government.
As Chief Justice Marshall said in the celebrated case of McCulloch vs.
Maryland: "When the law is not prohibited, and is really calculated to effect
any of the objects intrusted to the government, to undertake here to inquire
into the degree of its necessity would be to pass the line which
circumscribes the judicial department, and to tread on legislative ground."
(20 Law, ed., p. 309.) It is a maxim that a law must be upheld unless its
unconstitutionality is so clear as to have no reasonable doubt on the
subject.
Petition to have section 14 of Commonwealth Act No. 688 declared
unconstitutional is denied.
142 Phil. 570

SANCHEZ, J.:
Directly under attack in this an original action for certiorari, prohibition
and mandamus is the validity of the transfer of petitioner Felixberto C. Sta.
Maria from his post of Dean, College of Education, University of the
Philippines (UP), to the Office of respondent UP President Salvador P.
Lopez, there to become Special assistant in charge of public information
and relations.
Petitioner, a professor of English and Comparative Literature (formerly
Dean of the UP College in Baguio), was elected Dean of the College of
Education on May 5, 1967 by the Board of Regents, on nomination of the
UP President. His appointment as such Dean was for a five-year term,
"effective May 16, 1967 until May 17, 1972, unless sooner terminated, with
all the rights and privileges as well as the duties and obligations attached to
the position in accordance with the rules and regulations of the University
and the Constitution and laws of the Republic of the Philippines."
The issues in this case can be better understood if framed in its proper
setting, viz:
As far back as February 11, 1969, the graduate and undergraduate students
of the UP College of Education presented to President Salvador P. Lopez a
number of demands having a bearing on the general academic
program[1] and the physical plant and services,[2] with a cluster of special
demands.[3] In response, President Lopez created a committee composed of
eight graduate students, two undergraduate students, and four faculty
members. This committee met 9 times with Dean Sta. Maria in February
and March 1969. On March 17, 1969, Dean Sta. Maria gave President Lopez
a written summary of the dialogues he had with the committee and
enumerated in connection with the demands, the steps taken,[4] the steps
being taken,[5] and the steps to be taken in consultation with the
faculty.[6] He also recommended to the UP President the following: a more
adequate budget responsive to the needs of the college, taking into account
its expanding graduate program; improvement of the library service in
terms of a better book collection and more adequate space and reading
rooms, particularly for graduate students; appointment of more faculty
members on the senior level to handle the large graduate program, and to
meet the acute need for more graduate advisers, critics, and committee
members; improvement of the water system of the college; improvement of
the physical plant of the college, including its classrooms, offices, toilets,
sidewalks and surrounding landscape; and construction of a graduate
students' dormitory.
But the students were not to be appeased. For, Dean Sta. Maria, according
to them, did not act on some of their demands. Respondents herein have
stressed that in the meetings of the education graduate committee, Dean
Sta. Maria neither included in the agenda nor consulted the faculty about
the students' demands on "foreign language proficiency examination" and
on "research and thesis writing procedures". They have brought out the
fact that many members of the faculty shared the students' grievances on
the absence of definite standards and procedures on academic work,
including teaching load, administrative and committee assignments, faculty
evaluation, and favoritism and discrimination.
On July 16, 1969, Adelaida E. Masuhud, President of the UP Graduate
Education Student Organization, led a group who visited President Lopez
and submitted to him a progress report on the students' demands taken up
with Sta. Maria since March 26, 1969. She acknowledged that the dean had
granted ten demands[7] but deplored the fact that the dean had ignored the
following: submission to the faculty for decision, of the demand for
abolition of foreign language requirements and Comprehensive
examinations; fixing the criteria for selection, admission, appointment and
promotion of faculty members; formulation of clear-cut policies on thesis
advising, faculty teaching load, and faculty membership on standing
committees; and appointment of a permanent director for the Graduate
Education Studies of the SPED Program. She thus stated: "I appreciate the
efforts of the Dean in acting on some of our demands. However, the Dean
has failed to take further action on the demands that have far reaching
implications for the students, faculty and the College as a whole. As a
consequence problems, confusion and demoralization of students and
faculty have cropped up anew in the college."
The students threatened to boycott their classes the next day, July
17. President Lopez asked that they desist, suggested that they instead
attend a student-faculty meeting the next day in his office.
But on July 17, the Education Graduate Student Organization boycotted
their classes just the same. The President met the striking students'
representatives and the faculty members of the College of
Education. Charges of favoritism were allegedly hurled by some of the
faculty members against Sta. Maria. On the other hand, the dean offered to
sit down with the students. The latter, however, refused to enter into a
dialogue unless he (the dean) were first ousted.
In a separate development, the faculty members of the College of Education
convened in the afternoon of July 22. They resolved, amongst others, to
recognize the right of a college dean to his position from which he cannot be
removed unless for cause (44 in favor, 2 abstained), and not to endorse the
students' demand for the forced resignation of Sta. Maria (36 in favor, 5
against, 3 abstained).
The boycott fever infected other colleges. On July 22, 1969, the newly
installed members of the UP Student Council voted to support the
education students' strike. The next day, July 23, the main avenues leading
to the university gates were barricaded, buses denied entrance, and
students cajoled into joining the strike. It was thus on that day that all
academic activity in the university came to a complete standstill. In the
morning of July 23, at 10:00 o'clock, the UP President called a meeting of
the faculty of the College of Education. Those present gave him a vote of
confidence (40 in favor, 7 abstained) to resolve the issue on hand as he sees
fit.
Armed with the vote of confidence of the education faculty, on the same
day, July 23, 1969, President Lopez issued the transfer order herein
challenged, Administrative Order 77. That order, addressed to Dean Sta.
Maria, reads:
"By special authority vested in me by the Board of Regents and pursuant to
the Civil Service Law and the University Code, you are hereby transferred
from the College of Education to the Office of the President as Special
Assistant[8] with the rank of Dean, without reduction in salary, in the
interest of the service.
This transfer involves your administrative position only and in no way
affects your status as professor of the University.
This order shall take effect immediately."
Simultaneously, President Lopez
appointed ad interim Professor Nemesio R. Ceralde as "acting Dean of the
College of Education, without additional compensation, effective July 23,
1969".
President Lopez was to explain in a press statement of July 23, 1969 that he
"cannot permit the continued disruption of the academic life of the
institution"; that the transfer order was made "[i]n the interest of the
service" and "as an emergency measure" because the meetings with the
faculty, students, Sta. Maria and the UP President had "proved fruitless in
the face of the refusal of the College of Education students to discuss any
further their demands unless and until Dean Sta. Maria resigns his
position"; and that, therefore, "the complete shut-down of classes in
the Diliman campus has compelled" him to "transfer Dean Sta. Maria to
other duties".
Having received the transfer order on the same day, July 23, Sta. Maria
forthwith wrote a letter, which he himself hand carried to President Lopez,
requesting that "(a) a formal investigation be conducted by the Board of
Regents on the circumstances which led to the promulgation of the above
order, and on the basis thereof; and (b) said order be reconsidered and set
aside for being manifestly unjust, unfair, unconstitutional, and contrary to
law, and, therefore, null and void."
The next day, July 24, Sta. Maria announced to the education students and
faculty, through Memorandum 17, that the transfer order "is now the
subject of a pending request for reconsideration x x x and, for this reason,
its effectivity is necessarily suspended", and that he shall continue "to be
the Dean x x x pursuant to his appointment as such for the period from
January 1, 1968 to May 15, 1972."
On July 25, 1969, the education faculty signed a "Declaration of Concern"
stating, amongst others, that when they gave President Lopez a vote of
confidence, they "did so in the belief and confidence that he x x x will
uphold the democratic processes in the solution of the problem and will
respect the fundamental rights of the individual." Similar declarations of
concern came from the faculties of law, medicine, arts and sciences, and
nursing.
At President Lopez' request, a special meeting of the Board of Regents was
held on July 25, 1969. President Lopez there reported Dean Sta. Maria's
transfer and Professor Ceralde's ad interim appointment as Acting Dean of
the College of Education. He told the board that because of "failure of
leadership in the College of Education, a crisis of confidence emerged in
that institution"; that the ultimate result was the boycott of classes by the
students "starting on July 17, 1969 in protest against the inaction of Dean
Sta. Maria on their demands submitted months ago"; and that this situation
impelled him to issue Administrative Order 77 "as demanded by the
prevailing crisis."
The board confirmed Dean Sta. Maria's transfer and
Professor Ceralde's appointment, considered as premature Sta. Maria's
Memorandum 17 heretofore mentioned, but gave due course to his plea for
reconsideration and granted him a chance to be heard at the next board
meeting on July 29, 1969.
In the said meeting of July 29, Sta. Maria did not personally appear. He
sent his counsel who manifested that Sta. Maria was not recognizing the
board's jurisdiction unless, without further hearing, the board first revoke
the transfer order. The board resolved: "x x xto take cognizance and
consider as a new petition of Dean Sta. Maria, submitted through counsel,
his declaration that the efficacy of the President's Administrative Order No.
77 transferring him should first be suspended by the Board and held in
abeyance as a prerequisite for the hearing being prayed for. In this
connection, Dean Sta. Maria will be asked to file a Memorandum with the
Board in support of his new petition."
The foregoing had been the developments when Sta. Maria filed the present
petition for certiorari, prohibition and mandamus in this Court on July 31,
1969 against respondents Salvador P. Lopez, the Board of Regents
and Nemesio R. Ceralde.
The case is now ripe for decision.
1. Discussion of the issues herein involved necessarily has to start with the
examination of the terms of employment, the covenant which binds
petitioner with the university. The contract, it bears repeating, stipulates
that the dean's five-year term is qualified by the clause: "unless sooner
terminated, with all the rights and privileges as well as the duties and obli-
gations attached to the position in accordance with the rules and
regulations of the University and the Constitution and laws of the Republic
of the Philippines." The authority for this appointment is found in Article
79 of the university code providing that "[t]he term of office of all deans
x x x shall be five years from the date of their appointment without
prejudice to reappointment and until their successors shall have been
appointed."
We first look into the meaning of the phrase "unless sooner terminated"
embodied in the contract of employment. Right at the start, it would seem
to us that the term "unless sooner terminated" cannot be equated or tied up
with some such terms as "terminable at will", or "removable at pleasure".
A number of reasons there are why petitioner may not be removed at
pleasure before the expiry of his term. First. Petitioner's contract of
employment has a fixed term of five years. It is not an appointment in an
acting capacity.[9] Nor is petitioner's designation that of an officer-in-charge
as it is known in administrative practice. Second. Nothing in the rules and
regulations of the university or its charter would indicate that a college
dean appointed with a term can be separated without cause. On the
contrary, reason there is to believe that the university policy points quite to
the contrary. An instance is the resolution of the Board of Regents of June
14, 1961, fixing the term of office of the UP President. It was there stated
that "uncertainty of tenure and frequency of change in the incumbent of the
position are not for the best interests of the University." This concept is
self-evident. Third. Again, there is nothing either in the UP charter or code
empowering the UP President or the Board of Regents to insert such a
clause - unless sooner terminated - as would authorize dismissal at
will. Fourth. As this Court, in Lacson vs. Roque, 92 Phil. 456, 463, ruled,
"strict construction of law relating to suspension and removal, is the
universal rule." Petitioner, with a definite term of employment, may not
thus be removed except for cause. The reasons being that the removal was
not expressly declared to be exercisable at pleasure or at will; and that the
fixity of the term of office gives rise to the inference that he may be removed
from office only for misbehavior as to which he shall be entitled to notice
and hearing. As was well pointed out in Lacson vs. Roque, [a]n inferential
authority to remove at pleasure can not be deduced, since the existence of a
defined term, ipso factonegatives such an inference and implies a contrary
presumption, i.e., that the incumbent shall hold office to the end of his term
subject to removal for cause."[10]
The foregoing paves the way for the consideration of what we believe is the
overriding question: Was Sta. Maria removed?
2. Respondents stand on the premise that Sta. Maria was not removed; he
was just temporarily assigned to another position.
We may well start with the statement that a dean of a UP college holds a
non-competitive or unclassified civil service position.[11] As such, and upon
the provisions of his contract of employment, he is protected by
constitutional and statutory provisions on security of term.[12]He cannot be
removed during the term except for cause and after prior hearing and in-
vestigation.[13] Which requisites are also embodied in the university
Charter[14] and in the university code.[15]
But is there really need for a formal prior hearing? No need, respondents
say. For, the Civil Service Law requires prior hearing only in cases of
removal, dismissal or suspension. Sta. Maria, respondents underscore, was
not suspended, dismissed or removed; he was merely transferred to
another position without reduction in salary or rank in the interest of public
service.[16] Respondents proceed to aver that the transfer was neither
disciplinary nor punitive.[17] A promotion, so they claim, because in the new
position he would be an officer of the university not just of one
college;[18] he would enjoy a rank at par with senior college deans;[19] and
that he would be in line for one of the vice-presidencies of the
university.[20] Respondents also say that such transfer was an emergency
measure to stave off a crisis that gripped the campus - the paralyzing
disruption of classes.[21] They emphasize that there was an urgent and
genuine need for petitioner's talents and services in the newly created
Public Affairs and University Relations Office.
Quite interesting it is to inquire whether Dean Sta. Maria was transferred,
promoted, demoted, or removed without his consent.
3. A transfer is a "movement from one position to another which is of
equivalent rank, level or salary, without break in service."[22]Promotion is
the "advancement from one position to another with an increase in duties
and responsibilities as authorized by law, and usually accompanied by an
increase in salary."[23]
A transfer that results in promotion or demotion, advancement or
reduction[24] or a transfer that aims to "lure the employee away from his
permanent position", cannot be done without the employee's
consent.[25] For that would constitute removal from office. Indeed, no
permanent transfer can take place unless the officer or employee is first
removed from the position held, and then appointed to another position.[26]
When an officer is reduced in rank or grade and suffers a big cut in pay, he
is demoted;[27] and when he is demoted, he is removed from office.[28] But a
demotion means something more than a reduction in salary; there may be a
demotion in the type of position though the salary may remain the
same.[29] A transfer that aims by indirect method to terminate services or to
force resignation also is removal.[30]
4. Concededly, transfers there are which do not amount to removal. Some
such transfers can be effected without the need for charges being preferred,
without trial or hearing, and even without the consent of the employee.
The clue to such transfers may be found in the "nature of the
appointment."[31] Where the appointment does not indicate a specific
station, an employee may be transferred or reassigned provided the
transfer affects no substantial change in title, rank and salary. Thus, one
who is appointed "principal in the Bureau of Public Schools" and is
designated to head a pilot school may be transferred to the post of principal
of another school.[32]
And the rule that outlaws unconsented transfers as anathema to security of
tenure applies only to an officer who is appointed - not merely assigned - to
a particular station.[33] Such a rule does not prescribe a transfer carried out
under a specific statute that empowers the head of an agency to periodically
reassign the employees and officers in order to improve the service of the
agency.[34] The use of approved techniques or methods in personnel
management to harness the abilities of employees to promote optimum
public service cannot be objected to.[35] Neither does illegality attach to the
transfer or reassignment of an officer pending the determination of an
administrative charge against him;[36] or to the transfer of an employee
from his assigned station to the main office, effected in good faith and in
the interest of the service pursuant to Section 32 of the Civil Service Act.[37]
5. The next point of inquiry is whether or not Administrative Order 77
would stand the test of validity vis-a-vis the principles just enunciated.
That the university is vested with corporate powers exercised by the board
of regents and the President is a proposition which is not open to
question.[38] The board, upon recommendation of the President, is clothed
with authority to hire and fire after investigation and hearing.[39] The
President, on the other hand, may fill vacancies temporarily,[40] transfer
faculty members[41] from one department to another,[42] and make
arrangements to meet emergencies occurring between board meetings so
that the work of the university may not suffer.[43]
To be stressed at this point, however, is that the appointment of Sta. Maria
is that of "Dean, College of Education, University of the Philippines." He is
not merely a dean "in the university" His appointment is to a specific
position; and, more importantly, to a specific station.
A line of distinction must be drawn between the office of dean and that of
professor, say, of English and Comparative Literature. A professor in the
latter capacity may be assigned to handle classes from one college to
another or to any other unit in the university where English is offered. He
may even be transferred from graduate school to undergraduate
classes. He cannot complain if such was done without his consent. He has
no fixed station.[44] As for him, it can always be argued that the interests of
the service are paramount.
But a college dean holding an appointment with a fixed term stands on a
different plane. He cannot, without his consent, be transferred before the
end of his term. He cannot be asked to give up his post. Nor may he be
appointed as dean of another college. Much less can he be transferred to
another position even if it be dignified with a dean's rank.[45]
6. We now come to the problem of whether or not petitioner's transfer
from the College of Education to the Office of the President as special
assistant with the rank of dean without reduction in salary was
permanent. Facts there are which would show that far from being a
temporary measure, petitioner's transfer was in fact a removal.
Respondent university president himself admitted that the transfer order
was an ad interim appointment. That the transfer was a removal has been
confirmed by the UP President's reference to Sta. Maria's deanship of the
College of Education as his "former position". This plainly indicates that
Sta. Maria ceased to be dean of the college. Thus:
"The validity of Dean Sta. Maria's designation or appointment as Special
Assistant to the President rests upon two acts:
(a) The transfer order of July 23, 1969, which operates as
an ad interim appointment under Art. 44(e) of the Revised U.P. Code; and
(b) The confirmation on such appointment by the Board of Regents in its
special meeting on July 25, 1969."[46]
And again:
"The position of Special Assistant to the President with the rank of Dean
carries equal, if not higher, rank than the position of Dean of the College of
Education. As Special Assistant to the President, Dean Sta. Maria has
become an officer of the University while in his former position, he was
merely an officer of the college in the University."[47]
Not that the foregoing stand alone. The reasons advanced by respondents
to justify such transfer are quite revealing. They pictured Sta. Maria as a
bungling administrator, incompetent, inefficient, unworthy, a
miscast. They averred that he did not act on the petitions and grievances of
graduate students; that he caused widespread dissatisfaction amongst
faculty members and students because of his "inaction", his "lack of
sincerity and candor in dealing" with them; that he was guilty of "inflexible,
arrogant attitude and actuation" as dean; that he miserably failed to avert a
boycott that was caused by a "crisis of confidence" and "failure of
leadership" in his college; that he abandoned his post when he was most
needed; that he refused to accept solutions even as he failed to advance his
own to mitigate the crisis; that in sum, he was a miscast in the College of
Education.[48] Of course, these are merely charges. But they collectively
reflect the thinking of respondents toward petitioner. In the picture thus
presented, it would not be unreasonable to say that Sta. Maria's transfer
was with the character of permanence to take him away from his duties and
responsibilities as dean, in all of which allegedly he was a failure.
And if more were needed to show that the transfer of Sta. Maria was
permanent, there is the fact that Nemesio Ceralde was appointed "ad
interim" acting dean of the College of
Education. And, Ceralde's appointment was confirmed by the Board of
Regents on July 25, 1969. Again, there is respondents' averment that peti-
tioner's new position as special assistant to the President could be a
stepping-stone to a higher position - that of Vice Presidency of the
university. Were his appointment but temporary, there would be no
occasion to say that he could be elevated to another position of a higher
category.
More than this, the transfer was a demotion. A demotion,
because: First. Deanship in a university, being an academic position which
requires learning, ability and scholarship, is more exalted than that of a
special assistant who merely assists the President, as the title
indicates. The special assistant does not make authoritative
decisions. Second. The position of dean is a line position where the holder
makes authoritative decisions in his own name and responsibility. A
special assistant does not rise above the level of staff position. Third. The
position of dean is created by law, the university charter, and cannot be
abolished even by the Board of Regents. That of special assistant, upon the
other hand, is not so provided by law; it was a creation of the university
president.
It will not avail respondents any to say that Sta. Maria retained "the rank of
Dean". In actual administrative practice, the term "with rank of" dean is
meaningless. He is no dean at all. He of course, basks in the trappings of
the dean. A palliative it could have been intended to be. But actually he is a
dean without a college.
7. Respondents nonetheless insist that the "interest of the service" is the
primary reason for the transfer. They say that there was an urgent need to
bring the academic life of the university back to normal and Sta. Maria's
transfer was the only feasible solution. They point to the need for
petitioner's services in the Office of Public Affairs and University Relations
purportedly "to improve the relations of the University with its various
constituencies." They cling to the principle of "least sacrifice".[49] They urge
that only three options were left to the university, namely: to keep Sta.
Maria at all costs and risk an indefinite paralysis of the university life; to
give due course to the charges filed against Sta. Maria, preventively sus-
pend him during the investigation, and after hearing dismiss him if the
evidence so warrants; and to transfer him as a non-disciplinary measure in
the interest of the service. Respondents claim that the first option was out
of the question. The reason they give is that the university could not afford
an indefinite disruption of academic life. To respondents, the second was
feasible but distasteful - the administration was in no mood to prejudice
Sta. Maria through a proceeding that would reflect on his record. So the
university administration opted for the third method, a solution said to be
the most convenient and expeditious and based on the principle of "least
sacrifice".
Implicit in the university's stand is that Dean Sta. Maria had to be uprooted
from his position as a price to buy the peace of the students and induce
them to return to their classes. Such could have been an easy way to climb
out of difficulties. But transfer could be but a ploy to cover dismissal. And
dismissal cannot be justified on grounds of expediency. Appropriately to be
remembered here is that due process is associated with the sporting idea of
fair play;[50] it shuns oppression and eschews unfair dealing; it obeys the
dictates of justice and is ruled by reason. The Scriptures no less remind us
to hear before we condemn.[51] Fidelity to this cardinal principle must have
impelled Congress, just recently, to clarify the authority to transfer
subordinate officers and employees, an authority so often misused and
abused to ride roughshod over hapless civil servants. As amended, the Civil
Service Law provides that "if the employee believes that there is no
justification for the transfer, he may appeal his case x x x and pending his
appeal and decision thereon, his transfer shall be held in abeyance." This
was intended to fortify the protective wall built around the employee's right
to security of tenure, to guard against unbridled encroachments
masquerading in the "interest of the service". And, to think that this
amendment came just a few days after Sta. Maria was transferred without
prior hearing.
The current climate of activism of the young people, recognized to be
worldwide, whether on or off campus, is a phenomenon in this country that
commands attention. Demonstrations and boycotts which are
manifestations of such activism are constitutionally protected. But there are
limits. A fundamental precondition to the exercise of such rights, we
perceive, is that the activity should not impair the rights of others whose
roots are as deep and as equally protected by iron-clad guarantees. A high
regard to a man's dignity is the hallmark of our law.
The students demanded Sta. Maria's ouster. The President of the university
acceded to their demand. But Sta. Maria's right to be removed only, in the
words of the law, "after due process" was disregarded. That Sta. Maria's
right alone was impaired is not justification for the action taken against
him. Unless, of course, justice be replaced by collective action as the test
for validity. And, unless we admit that arbitrariness is permissible if it
comes from an impersonal multitude.
Nor may it be assumed that emergency could justify disregard of
constitutional rights. It would seem pertinent to observe that a
fundamental charter is for all times and for all conditions. Eloquent are
these passages from the declaration of concern from the College of Law
faculty:
"We, the faculty of the College of Law, University of the Philippines, view
with the utmost concern the removal of Felixberto Sta. Maria from his
position as Dean of the College of Education by the President of the
University of the Philippines.
As members of the academic community that is the University, as members
of the Philippine Bar, and as citizens of our Republic, we speak out in
protest against this violation of the Rule of Law in our midst and the clear
disregard of the fundamental rights of one of our colleagues.
A member of the faculty of the University of the Philippines, pleading for
his day in court, asking to be heard in his defense, desirous to confront his
accusers, and appealing for a hearing by a disinterested body, has been
summarily condemned without trial. He has been punished without
evidence formally presented. He has been stripped of his powers and
prerogatives as Dean, in violation of that most basic and fundamental right
- that no person shall be deprived of his life, liberty, or property without
due process of law and in accordance with the regularly established
procedures.
Our concern has nothing to do with the merits of the case
against Felixberto Sta. Maria. We protest the procedure that was followed
in disregard of due process. Under a legal system like ours, there are
established procedures to settle disputes. The arbitrary rule of one or the
mob rule of the many are alien to our free institutions. Under existing
university rules and practice, charges against students, no matter how
minor, are formally investigated. Why should a dean be entitled to less?
We are aware that the action against Dean Sta. Maria was denominated a
transfer to other duties in the University without reduction in rank or
salary. This thin veneer of legalism, this transparent attempt to follow the
letter but not the spirit of the Constitution, the University Charter, the U.P.
Revised Code, the Civil Service Law, and the Civil Service Rules and Regu-
lations deceives no one. Who can, in good conscience, honestly say that
Dean Sta. Maria has not been reduced in rank, privileges and
prerogatives? Who can discount his moral anguish and suffering?
The vote of confidence given by the faculty of the College of Education
notwithstanding, the President of the University remains bound by and can
act only in consonance with, the Rule of Law.
We agree with the President that there should be no disruption of the
academic life of the community. Like him, we want peace, but not at any
price. Peace secured at the expense of Constitutional principles is no peace
at all; and the peace just now obtained is no more than a transitory lull, a
precarious interlude that could lead to even more serious disorders and
disregard of fundamental rights.
We also regard with alarm this action against Dean Sta. Maria because of its
consequences on the morale of the faculty. The exercise of independent
judgment the performance of academic responsibilities is imperilled where
the force of numbers can replace the rational solution to a controversy.
Believing that the action taken against Dean Sta. Maria is not irreversible,
we submit to the President of the University this declaration of concern,
urging him to reconsider his action."[52]
8. The argument that the transfer of Sta. Maria was made in the interest of
public service has dwindled in strength on the face of the circumstances. Of
course, the university is under compulsion to bring normalcy to the
campus, to end the boycott of classes. The decision to transfer could really
refract the temper of the times. We do say, however, that emotion or
muscle need not displace reason.
Nor do we believe it too difficult for the UP authorities to hew to the line
drawn by the due process clause, to cause charges to be formalized, Sta.
Maria suspended, and given a fair chance to defend himself. This
procedure does not necessarily bring about humiliation. On the contrary, it
exudes the spirit of fairness.
The baneful effects of Sta. Maria's transfer were easily and promptly
felt. The professors in different faculties were alarmed. Obviously they felt
that to compel a professor to give up his constitutional right is beyond
tolerance. A declaration of concern was expressed not only by the faculty of
the College of Law as aforesaid but also the Colleges of Education, Arts and
Sciences, Medicine and PGH School of Nursing, all of the UP.
More than these, such transfer undermined the integrity of UP. The
university buckled under strain, yielded where it should have upheld its
commitment to the rule of law. Peace may not be secured at the expense of
consecrated constitutional principles. A contrary rule could lead to more
serious disorders.
9. Respondents urge that "the traditional concepts and requirements of
due process could not be made to apply to every kind of administrative
action, without the consequent inefficiency and frustration of legislative
purpose." They argue that certain types of administrative action may be
taken without prior hearing and still satisfy the requirements of due
process. The existence of a public emergency, they insist, would suffice to
justify summary action. To prop up their stand, respondents cite such
summary administrative actions as distraint of a delinquent taxpayer's
property;[53] abatement of a nuisance per se;[54] cancellation of a passport of
one who absconds to another country to evade criminal prosecution.[55]
No question that a summary administrative action is appropriate in the
cases cited. Examples can be multiplied. Thus, without providing for a
prior hearing, a bank conservator may seize a distressed bank;[56] the Food
and Drug Administrator may confiscate harmful drugs whose Labels are
allegedly misleading;[57] the Civil Aeronautics Board may suspend a letter of
registration;[58] and the Securities and Exchange Commission may suspend
the license of a securities dealer to deal in small offerings.[59] In all these
cases, the courts have uniformly ruled that due process does not require
judicial inquiry as a condition to the exercise of administrative discretion.
"It is sufficient, where only property rights are concerned, that there is at
some stage an opportunity for a hearing and a judicial determination."[60]
We can go on citing cases where regulatory agencies, in a manner of
speaking, shoot first before asking questions without offending against due
process. But it is pointless to cite them here, much less rely upon them to
support Sta. Maria's unconsented transfer. For central to those cases is that
they involve the exercise of regulatory authority pursuant to a delegated
police power. The reason these agencies are given such summary powers is
that they come to grip with issues that are mostly scientific and technical,
issues that are "perhaps not readily reducible to the simple question-and-
answer method so dearly beloved by lawyers."[61] Hence, in place of a formal
hearing they resort to inspection, examination and testing - techniques
regarded as sufficient substitutes upon which to base an administrative
action.[62] Whether poultry is putrid, or drug is harmful, or a ship
is unseaworthy, are matters better left to scientific analysis or technical
inspection without the need of a formal hearing. Based on such
examination and inspection, summary orders for condemnation or
confiscation may follow.
But the UP President's decision to summarily take the deanship away from
Sta. Maria cannot, by any stretch of imagination, be cast in the same type of
administrative actions that regulatory agencies exercise under a delegated
police power. The UP President's action here is unlike that, for instance, of
the Central Bank in removing the officers of a floundering bank in order to
take over its management.[63] Not even the so-called emergency situation in
the campus could be invoked to firm up his summary action. Seemingly,
the decision to transfer Sta. Maria was dictated by the howling protest of
demonstrating students who wanted to muscle in their demands for
curriculum changes. But precisely, it is in situations such as this that one
should be on guard lest reason and justice be overwhelmed by excitement
and passion.
10. Again, respondents cite the so-called "crisis of confidence" and "failure
of leadership" in the College of Education. Allegedly, these factors caused
the student boycott which UP tried to avert by the expedient of banishing
Sta. Maria from, and effectively depriving him of his deanship, of the
College of Education.
The boycott, we are made to understand, was called because Sta. Maria
resisted the pressures exerted by the graduate students. He refused to give
in to their demands - demands that sought to eliminate or influence the
direction of curricular requirements, specifically those which pertain to
foreign languages and comprehensive examinations. The graduate
students, it is alleged, considered these requirements as "obsolete vestiges
of colonial education, x x x activities which do not in any way add to the
learning activity of the student."[64]
Of course, students are entitled to petition school administrators for change
in curriculum, faculty, and school regulations.[65] Elders should listen to
what they say, and respond to their plea for university instructions that
have relevance in their education.[66]
This is a fast changing age of ferment and activism. Every day new
discoveries change man's life, morals, and attitude. The university
therefore cannot remain aloof to the contemporary scene.[67] Perhaps
the Wilsonian description of the ideal university as a place where "calm
science" sits "not knowing that the world passes", a place where past and
present are discussed "with knowledge and without passion", a place "slow
to take excitement" and unlike the world outside "in its self-possession
x x x"[68] would now appear to be anachronistic.
The students are "probably right in much of what they say, however wrong
their prescriptions for righting matters."[69] When they protest whether
against the college administration or against the Establishment, they
should be accorded the full scope of the constitutional protection to free
speech and assembly.[70] On the other hand, any decision or action to give
in to their demands must not be dictated solely by their "readiness x x x to
shout down and in other ways to stifle the free expression of opinion of
those with whom they disagree."[71] Otherwise, the probability exists that a
minority group of students may succeed in their attempt to impose, by
disruptive action, their views or their will on the majority. What indeed is
deplorable is "when we are confronted only with violence for violence's
sake, and with attempts to frighten or intimidate an administration into
doing things for which it can itself see neither the rationale nor the electoral
mandate; when we are offered, as the only argument for change, the fact
that a number of people are themselves very angry and excited; and when
we are presented with a violent objection to what exists, unaccompanied by
any constructive concept of what, ideally, ought to exist in its place."[72]
Compelling is the need to adhere to the traditional democratic processes
and procedures to secure action and redress. Decisions that are prodded by
ultimatums and tantrums are generally regarded with apprehension.
It was in the face of student revolt that the university officials buckled
under and gave in to the students' protest against the continued presence of
Dean Sta. Maria in the College of Education.
11. And yet, a close look into the so-called unfulfilled demands - abolition
of foreign language and comprehensive examination - would reveal that
Dean Sta. Maria could not have unilaterally granted them.
On the foreign language requirement, the students manifested that it is -
"x x x absurd and obsolete. Foreign students fulfill this requirement by an
examination in their language. Many of us take Spanish for the sake of
completing the requirements. We understand that these requirements in
other universities equip the students for his research. So if a student is
doing research on Spanish laws governing the educational system and
would need to use Spanish, therefore he has to have a reading knowledge of
Spanish. Such is not the case with us. We demand that this requirement be
abolished in the graduate's level."[73]
On the comprehensive examination requirements, the students say:
"x x x The present practice is by subject, excluding the cognates. Graduate
students believe that they are taking another final examination in a subject
they have already passed. We question the absence of policy as to who
should give comprehensive examination. We demand that the College
consider the use of qualifying examination aside from the Dean's proposed
admissions test."[74]
These requirements, we believe, are aimed at the development of the
student's depth of insight and breadth of view. This, after all, is an end that
a university education strives to attain: Foreign languages, should be
conceded, widen a man's world. Spanish, in particular, is one of the links to
our past. We can but surmise that Dean Sta. Maria had cogent reasons to
sidetrack the demands. It is within the realm of probabilities that the dean
wanted to preserve the high standards of professional scholarship in the
college. Perhaps he was loathe to turn his college into a factory for half-
baked graduates. The University of the Philippines, we must remember,
has set a standard and established a tradition for learning and leadership.
Consider, too, the fact that the education students are the future mentors of
the youth. Necessarily, they are expected to come through college with as
thorough and extensive preparation as possible if they are to serve as
educational leaders and models for scholarship.
On top of all, Dean Sta. Maria cannot single-handedly do away with these
requirements. The responsibility for fixing the academic requisites for
graduation and the receiving of a degree is lodged not in the dean but in the
university council, composed of the President of the university and all
faculty members from assistant professor to full professor.[75] The Dean
may only recommend proposals affecting courses of study.[76]
But Dean Sta. Maria had not been remiss in his duties. Truth to tell, the
students admit that Dean Sta. Maria was not after all unreasonably
inflexible, intransigent. He sympathetically listened to them, and broadly
satisfied those demands that were within his power as Dean to give, short of
compromising the academic standards of the university. Indeed, the
President of the Education Graduate Student Organization appreciated the
Dean's efforts to meet "some of our demands". But Dean Sta. Maria could
go no further. He went along with the students as far as the limits of his
power and discretion would allow him to go. Only the University Council
and the Board of Regents could recast the academic requirements in the
way the students wanted them to be. If so, why did they not act on the issue
to avert the crisis? But perhaps the university administration would not
want to risk the downgrading of the university's academic standards.
The editor of the Philippine Collegian, writing the valedictory editorial,
said:
"We criticized an administration which seemed to sway to the tune of
student power as a sheer force. The administration cannot act only because
of a show of might; it must have reasons for any act. And it must make
these reasons known, acting because of them without waiting for the
prodding of power.
No decision of the President should be forced by emergency, or
consideration of expediency. If emergency, or expediency, or the fear of
student power muscle are the only reasons for a decision, then the decision
should not be taken at all.
On the other hand, if a decision is impending, and is going to be taken
anyway, then the decision-makers should not wait to be forced into the
decision by an emergency situation. They should decide, and avert that
situation which is so costly in terms of class hours and the integrity of the
decision. And then, in terms of the reaction of the people involved by that
dubiously-taken decision.
Because we cannot allow it to appear that the University is being ruled by
the considerations of expediency, or by the dictates of emergency. The
University must be guided by things less base and more basic. It must be
ruled by reason, by justice, by the search for truth. This should always be
made clear, and always be respected. The University can be neither a self-
designed social instrument nor an institution ruled by force. It is there, if
anywhere, that we must be true to reason."[77]
It is because of all the foregoing that we are left under no doubt that
petitioner Felixberto Sta. Maria is entitled to be restored to his position as
Dean of the College of Education.
12. Just as we are about to draw this opinion to a close, our attention is
drawn to the alleged non-exhaustion of administrative remedies. A
sufficient answer would be that Dean Sta. Maria asked that he be restored
to his position pending investigation of any charge against him. But the
board refused. Instead, it confirmed the ad interim appointment of
respondent Prof. Nemesio Ceralde as "acting Dean" in place of Sta.
Maria. Virtually the door was closed. Nothing was left for Sta. Maria to do
but go to Court.[78]
Of course, Sta. Maria stood pat on his right to keep his position as
Dean. This is perfectly understandable. Hindsight now reveals that further
pursuit of administrative remedy before the Board of Regents would be but
an act of supererogation. At any rate, there is no compelling reason to
resort to this remedy.[79] Here, the claimed right is the constitutionally
protected due process. Mandamus will lie.[80]
For the reasons given, the writ of certiorari and prohibition prayed for is
hereby granted; the transfer of petitioner Felixberto C. Sta. Maria from his
position as Dean of the College of Education, University of the Philippines,
to the position of Special Assistant to the President, University of the
Philippines, as well as the ad interim appointment of
Prof. Nemesio Ceralde "as acting Dean" of the College of Education,
University of the Philippines, are hereby set aside and declared null and
void; the writ of mandamus prayed for is hereby granted, and the President
and the Board of Regents of the University of the Philippines are hereby
ordered to restore said petitioner Felixberto C. Sta. Maria to his position of
Dean, College of Education, University of the Philippines.
No costs.
SO ORDERED.

Dizon, Zaldivar, and Teehankee, JJ., concur.

Concepcion, C.J., and Makalintal, J., took no part.
Castro and Fernando, JJ., concur in separate opinions.
Reyes, J.B.L., J., did not take part.
Barredo, J., concurs and dissents in a separate opinion.
Villamor, J., joins Justice Barredo in his separate concurring and dissenting
opinion.

Specifically, they are: (a) Inadequacies of the Education library; (b)

[1]

Student representation in the board of editors of the Education Quarterly;

(c) Inadequate information to graduate students regarding policies
affecting their academic work; (d) Inadequate guidelines and policies
regarding thesis advising and other aspects of faculty work, which prejudice
students; (e) Restrictions on enrollment in certain graduate courses; (f)
Abolition of foreign language requirements; (g) elimination of topic panel
for research courses; (h) Superfluity of comprehensive examinations for
graduate students; (i) Reexamination of agreements with the Bureau of
Public Schools towards standardization of terms of scholarships; and (j)
Student representation in college committees. Answer, p. 10.
[2]These are: (a) Contributions from students for preparation of hand-outs;
(b) Deterioration of facilities in the College; (c) Opening of the graduate
office during regular hours; (d) Orientation program for new graduate
students and new faculty members; and (e) Dormitory for graduate
students. Answer, pp. 10-11.
[3]These are: (a) Protest against assignment of Prof. Rionda to teach a
subject not in her area of specialization; (b) Assessment of procedures on
faculty assignments and faculty competencies; (c) Need for coordinator in
the Special Education Program (SPED); (d) Recruitment of more instruc-
tors for the SPED Program; (e) Facilities for practicum supervisors; (f) No
threat of court suits against complaining students; (g) Information to
teacher students on grading system and values; (h) Re-evaluation of a grade
should extend to all requirements of the course, not merely the final exam-
ination; (i) Board review of the fusion of a special education and
programmed instruction into one department; and (j) Possible institution
of a separate Department of Filipino in the College of Arts and
Sciences. Answer, p. 11.
[4]To meet the students' demands, he took the following steps: (a) Issued
Memorandum No. 20 on monetary contributions; (b) Issued
Memorandum. No. 22 on the revised hours of the College library; (c) Issued
Memorandum No. 26 on consultation hours and the final examination
schedule; (d) Issued Memorandum No. 21 assigning a temporary officer-in-
charge of the Special Education Program; (e) Secured a car for the urgent
practicum assignment of the Special Education supervisors; (f) Sent a letter
to the President requesting for the services of a janitress, and subsequently
secured one, who started working on March 17, 1969; (g) Sent a letter to the
President recommending the relocation of non-education offices, such as
the Community Development Research Council and the Department of
Psychology; (h) Sent a letter to the President urging the equitable
settlement of the water and electric bills of the College; (i) Sent recom-
mendations for permanency of status and adjustment of salaries of
deserving academic and non-academic personnel; (j) Mediated between the
students and Miss Carolina Rionda, who was complained against by
students in Education 124. The students agreed to meet face-to-face with
Miss Rionda in an amicable settlement of the dispute. Miss Rionda agreed
to accommodate the students in most cases. Annex 2, Answer.
These steps are: (a) Inclusion of two student representatives (one
[5]

graduate and one undergraduate) in the editorial board of the Education

Quarterly, upon nomination by the students; (b) Reiteration of the
recommendation of the College of Education for the organization of a
Graduate Studies program with a director, to help solve many problems in
the graduate program. Original proposal was made on August 15, 1968, but
deferred by the Board of Regents in its meeting on October 24, 1968; (c)
Holding a formal orientation program, both undergraduate and graduate
students, at the beginning of each academic year; (d) Abolition of the topic
panel in graduate work; (e) Representation of the students, both graduate
and undergraduate, in college committees which concern
them. (Examples: Curriculum Committee, Student-Faculty Relation
Committee, Library Committee, Social and Cultural Committee); (f)
Replacement of the classroom chairs (initial delivery of 600 chairs expected
within two weeks). Original request for these chairs was made on
September 24, 1968; a previously approved requisition in 1967 was
cancelled. Annex 2, Answer.
[6]These are: (a) Recommendation to review the foreign language
requirement in the graduate program. Sentiment is for substituting other
requirements for the formal language requirement on the master's degree
level. Student representatives will be invited during the discussion of this
particular item in the curriculum committee meeting as well as the faculty
meeting, if necessary; (b) Recommendation to review the comprehensive
examination requirement for work on the master's degree level. Sentiment
is to retain this particular requirement, but excluding the part on cognates;
(c) Recommendation to institute a system of faculty evaluation by students,
using an appropriate instrument; (d) Recommendation for an appropriate
faculty committee to look into instruction practices, with students' opinion
taken into account in the meetings of the student-faculty relations
Committee; (e) The institution of a Graduate Record Examination for
admission to candidacy on the master's level and admission to the doctoral
program; (f) The issuance of a brochure or an equivalent guide to clarify the
procedures to be followed in graduate work in both the masteral and
doctoral levels. Annex 2 of Answer; Annex B of Reply.
The demands which had been granted by Dean Sta. Maria were: (a)
[7]

Longer library hours; (b) Employment of a janitress for the ladies comfort
room; (c) Purchase of new chairs; (d) Installation of proper lighting
facilities; (e) Repainting of classrooms; (f) Cleaner corridors, classrooms
and surroundings; (g) Free choice of thesis advisers and organization
adviser; (h) Abolition of topic panel; (i) Temporary appointment of
coordinator for SPED Program; and (j) Representation of students in the
college standing committees.
[8] Annex 11, Answer.
[9] Austria vs. Amante, 79 Phil. 780, 784(1948).
Supra, at p. 467, citing State ex rel. Gallaghar vs. Brown, 57 Mo. Ap.,
[10]

203, expressly adopted by the Supreme Court in State ex rel. vs.Maroney,

191 Mo. 548; 90 S.W., 141; State vs. Crandell, 269 Mo. 44; 190 S.W. 889;
State vs. Salval, 450, 2d. 995; 62 C.J.S., 947.
Tapales vs. President of the University of the Philippines, L-17523,
[11]

March 30, 1963, 7 SCRA 553, 557. Also Article II, Section 5(e), Republic
Act 2260, Civil Service Act of 1959, which states: "The following specific
officers and employees shall be embraced in the non-competitive or
unclassified service: x x x (e) Members of the various faculties and other
teaching force of the University of the Philippines and other government
colleges offering courses in the collegiate level, including the business
directors and registrars of said institution."
Lacson vs. Romero, 84 Phil. 740(1949); Garcia vs. Lejano, L-12220,
[12]

August 8, 1960; Santos vs. Mallare, 87 Phil. 289(1950); Rodriguez vs. Del
Rosario, 93 Phil. 1070 (1953).
[13]Section 4, Article XII, Constitution: "No officer or employee in the Civil
Service shall be removed or suspended except for cause as provided by
law." Section 32, Article VII, Civil Service Act of 1959: "Disciplinary
Action. - No officer or employee in the civil service shall be removed or
suspended except for cause as provided by law and after due
process: Provided, That a transfer from one position to another without
reduction in rank or salary shall not be considered disciplinary when made
in the interest of public service: Provided, further, That no complaint
against a civil service official or employee shall be given due course unless
the same is in writing and subscribed and sworn to by the
complainant: And provided, finally, That the respondent shall be entitled
to a formal investigation if he so elects in which case he shall have the right
to appear and defend himself at said investigation in person or by counsel,
to confront and cross-examine the witnesses against him, and to have the
attendance of witnesses and production of documents in his favor by
compulsory process of subpoena or subpoena duces tecum."