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PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. L-1612. February 26, 1948. ]

JORGE B. VARGAS, Petitioner, v. EMILIO RILLORAZA, JOSE BERNABE, MANUEL ESCUDERO, Judges of People’s Court, and THE SOLICITOR GENERAL OF THE PHILIPPINES, Respondents.

Claro M. Recto, for Petitioner.

Solicitor General Manuel Lim and Assistant Solicitor General Manuel P. Barcelona for Respondents.

SYLLABUS


1. CONSTITUTIONAL LAW; DISQUALIFICATION OF SUPREME COURT JUSTICES, GROUNDS FOR. — By virtue either of Article VIII, section 13, or Article XVI, section 2, of the Constitution, the grounds for disqualifying judges, which had been held to include justices of the Supreme Court (Jurado & Co. v. Hongkong and 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 above-cited 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, 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.

2. ID.; ID.; ACT REPUGNANT TO CONSTITUTION CANNOT BECOME LAW. — No act of the legislature repugnant to the constitution can become a law.

3. ID.; ID.; ID.; PEOPLE’S COURT ACT, SECTION 14, REPUGNANT TO CONSTITUTION. — To discover whether section 14 of the People’s Court Act, quoted in the opinion, 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 said 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 Article VIII of the Constitution, particularly 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, said 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.

4. ID.; ID.; ID.; ID.; ACTUAL REMOVAL NOT NECESSARY TO REPUGNANCY. — For repugnancy to result it is not necessary that there should be an actual removal of the disqualified Justice from his office for were it not for section 14 of the People’s Court Act 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 of disqualification under Rule 126. What matters here is not only that the Justice effected 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 simply cannot become a law.

5. ID.; ID., ID.; ID.; DISQUALIFICATION OF JUSTICES IN CERTAIN TREASON CASES IS DIMINUTION OF JURISDICTION OF SUPREME COURT. — 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.

6. ID.; ID.; ID.; ID.; PROSPECTIVE OPERATION OF LEGISLATIVE REGULATIONS. — Some of the Justices affected by the prohibition in section 14 of the People’s Court Act 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.

7. ID.; ID.; ID.; ID.; JUSTICES TO BE APPOINTED ACCORDING TO CONSTITUTION. — In the face of the constitutional requirement (Art. VIII, section 5) that the members of the Supreme Court should (shall) be appointed by the President with the consent of the Commission on Appointments, no person not so appointed may act as Justice of the Supreme Court and 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. It may happen that a "designee," 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.

8. ID.; ID.; ID.; ID.; PERMANENT COMPOSITION OF SUPREME COURT. — 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 section 4 of Article VIII 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. 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, 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.

9. ID.; ID.; ID.; ID.; TEMPORARY JUSTICES OF SUPREME COURT. — A part of the membership (a minority) of the Court believes that the act of the United States Congress dated February 6, 1905, 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 of the Supreme Court.

Per PERFECTO J., concurring:chanrob1es virtual 1aw library

10. MATTERS OF CONSTITUTIONAL LEGISLATION. — Judicial qualifications and disqualifications are matters basically constitutional. They go to the very roots and the existence of the judiciary established by our people: Congress can not legislate on judicial disqualification without jeopardizing judicial independence.

11. LAWS OF JUDICIAL PROCEDURE. — In granting the Supreme Court the rule making power, the Constitutional Convention did not have in mind considering specific statutory provisions on judicial procedure.

12. FIGHT FOR JUDICIAL INDEPENDENCE. — In 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.

13. SECTION 14 OF ACT 682 NULL AND VOID. — Section 14 of Act 682, so far as it provides for disqualification of certain justices of the Supreme Court, 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.

14. TRIAL OF MARSHAL PETAIN. — 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 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.

15. AMENDMENT OF THE CONSTITUTION. — Section 14 of Act 682, in the cases mentioned therein, amends the Constitution by adding a new qualification to those mentioned in Article VIII, section 6, of the Constitution. That amendment cannot be effected by legislation.

16. INCLUSIO UNIUS EST EXCLUSIO ALTERIUS. — Article VIII, section 8, of the Constitution, provides that Congress "shall prescribe the qualifications of judges of inferior courts." Under the legal maxim inclusio unius est exclusio alterius, Congress is without power to prescribe the qualifications or disqualifications of justices of the Supreme Court.

17. REMOVAL OF JUSTICES. — The members of the Supreme Court, once qualified and had taken their oath of office, may be removed only by impeachment according to the procedure prescribed in Article IX of the Constitution.

18. POLITICAL BLUNDER OF PRESIDENT ROOSEVELT. — President Roosevelt, with all the admiration and profound respect we entertain for him, 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.

19. PRINCIPLE ESSENTIALLY WRONG. — The wrong committed by President Roosevelt was one by addition; that committed by section 14 of Act 682 is by subtraction. Whether by addition or subtraction, the principle is essentially wrong, unjust, subversive, destructive of the principle of separation of powers. It will, ultimately, turn the Supreme Court as a mere appendix of Congress, subject to the whims of the leaders of the same.

20. OUR REFUSAL. — 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.

21. CONTROL OF THE SUPREME COURT. — No power in government should try, directly or indirectly, to control the manner by which the Supreme Court and its members should administer justice. The only power that can control their acts is the power of their own consciences, with the object of their function as an eternal guiding star: justice, with all its overpowering moral and divine force.

22. JUSTICE. — Cicero, Saint Thomas Aquinas, and Aristotle extol justice as the most excellent and greatest among all virtues.

23. THOUGHTS AND IDEAS OF GREAT THINKERS. — 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 wooly mammoth, buried in the Russian tundras, which today can still be eaten, although the beasts died in the prehistoric 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.

24. FORERUNNERS OF THE ERA OF ATOMIC ENERGY. — Democritus, Aristotle, the medieval alchemists, Galileo and Newton are the forerunners of the Era of Atomic Energy, the most revolutionary in the history of mankind, just ushered by the works of the Pleiad of modern physicists who contributed to the production of the atomic bomb.

25. JUSTICE HOLMES READ ARISTOTLE. — 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 from 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.

26. TIME AND STUDY NEEDED. — Deep thinking and study, matured deliberation, and ample and long discussion are needed before the Supreme Court could do full justice in disposing of a question of far-reaching importance raised before us for the first time.

27. VOTE RESERVED. — Wanting to have an opportunity of studying further the question, of thinking more on it and, at least, for a solitary self-discussion, having been deprived of the benefits of a full deliberation with our brethren assemble in a collective body, we reserved our vote until the resolution could be reduced in writing.

28. NULL AND VOID. — 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.

29. OUTSIDE OF THE LEGISLATIVE POWER. — The existence, constitution, and organization of the Supreme Court as provided in the fundamental law of the land, are matters that cannot be the subject of laws enacted by the legislative power.

30. APPOINTMENT. — According to section 5 of Article VIII of the Constitution, the members of the Supreme Court shall be appointed by the President with the consent of the Commission on Appointments. This provision can in no way be interpreted as authorizing a judge of an inferior court to sit in the 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.

31. SECTION 14 OF ACT 682. — Section 14 of Act 682, in authorizing the designation of judges of first instance to sit in the Supreme Court, in fact, grants the President an arbitrary power never contemplated by the framers of the Constitution and deprives the Commission on Appointments of its constitutional right to consent or not to consent to the appointment of the members of the Supreme Court.

32. CITIZENSHIP REQUIRED BY CONSTITUTION. — As a member of the Constitutional Convention and the Committee on Style thereof, we are in a position to state categorically that we 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." We would not trust the important functions of the Supreme Court in the hands of men who have not the time to learn, to think, and to feel as a born Filipino citizen should.

33. AGE REQUIREMENT. — Under section 6 of Article VIII of the Constitution, no person may be appointed a member of the Supreme Court unless he be at least 40 years of age. A citizen who is younger may be appointed Judge of any inferior court.

34. TEN YEARS OF LAW PRACTICE. — The Constitution requires that no person may be appointed a 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." A lawyer who has just been authorized to practice law may be immediately appointed a judge of the inferior court, according to section 8 of Article VIII of the Constitution.

35. TRANSFER TO ANOTHER DISTRICT. — Section 7 of Article VIII of the Constitution provides that "no judge appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court." The principle of judicial stability sanctioned in said provision is violated by the designation of a judge of an inferior court to a seat in the Supreme Court.

36. JUDGES OF FIRST INSTANCE. — The qualifications for judges of first instance are provided in section 149 of the Administrative Code. They are not the same as those required by the Constitution for a member of the Supreme Court.

37. RADICALLY WRONG AND SUBVERSIVE. — To give effectiveness to section 14 of Act 682 is to sanction a principle radically wrong and highly subversive. It defeats the very provisions of the Constitution concerning judicial power.

38. INIMICAL TO PUBLIC INTEREST. — The provisions of section 14 of Act 682, besides being evidently unconstitutional, is highly inimical to public interests. It disturbs the smooth functioning of the affected inferior courts and delays the administration of justice therein.

39. WORSE THAN THE OLD JUDICIAL "RIGODON" AND LOTTERY. — The power granted to the President by section 14 of Act 682 will permit a judicial rigodon worse 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 in a memorable case before the Supreme Court.

40. CONSTITUTIONAL PROVISO. — The proviso in section 4 of Article VIII of the Constitution applied exclusively to the provision authorizing the Supreme Court to sit or not to sit in two divisions. It cannot be interpreted as affecting the remaining portions of the section as, otherwise, it will transgress the most elementary rules of literary semantics and will lead us to the most absurd conclusions.

41. CHIEF JUSTICE AND ASSOCIATE JUSTICES. — Under the Constitution the Supreme Court shall be composed only of "A Chief Justice and ten associate Justices." Section 14 of Act 682 authorizes it to be composed of five judges of inferior courts. The constitutional violation is flagrant.

42. TWO SUPREME COURTS. — The practical result of the action of Congress in enacting section 14 of Act 682 is to create, form, constitute and organize a second Supreme Court, thus authorizing the existence of two Supreme Courts, one composed of a Chief Justice and ten Associate Justices and the other of six justices and five judges of inferior courts. This is a clear violation of section 1 of Article VIII of the Constitution which authorizes the existence of only one Supreme Court.

43. PRINCIPLE OF IMMOVABILITY. — Immovability is one of the essential and indispensable characteristics of our system of administration of justice. That principle is expressly sanctioned in section 9 of Article VIII of the Constitution, providing that the members of the Supreme Court cannot be removed from office except on impeachment proceedings.

44. PARTIAL REMOVAL BY DISQUALIFICATION. — The disqualification provided in the first paragraph of section 14 of Act 682, provides for the partial removal of the affected Chief Justice and Associate Justices without the benefits and guarantees of an impeachment proceeding.

45. LEGISLATIVE INCONSISTENCY. — Since the Chief Justice and four disqualified Associate Justices were appointed by the President and their appointments were promptly approved by the Commission on Appointments, Congress has absolutely no reason why it should not have implicit faith in said judicial officers, Section 14 of Act 682 shows the most unjustifiable legislative inconsistency when it implies lack of faith in said officers.

46. SPELL OF JUSTICE. — Once one feels the charming spell of justice one will feel it stronger everyday to such extent that one will accept sweetly any personal sacrifice to be true to her. There is a rapturous glory in serving her that makes one forget every other thing else.

47. POPULAR INJUNCTION. — The provision by which the affected Chief Justice and Associate Justices have been appointed shows that they have the personality that guarantees justice. The process carries with it a kind of popular injunction, sacred in a democracy, that cannot be reversed except by impeachment proceedings.

48. FOUNTAIN OF PERPETUAL YOUTH. — Although all efforts have failed to find in the New World discovered by Columbus the legendary fountain of perpetual youth, 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 modern political history.

49. REIGN OF LAW. — 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.

50. PHYSICAL WORLD AND PEOPLES. — 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.

51. TESTING FACTOR. — The authors of the Constitution adopted section 11 of Article VIII, believing that the people will be benefited by knowing and preserving the reasons for dissenting opinions, as the validity of the doctrines enunciated by the majority opinions can only be successfully and profitably tested by fully knowing the reasons of those who disagree with them.

52. LOYALTY TO THE CONSTITUTION. — Any effect of personal character resulting from this opinion must not affect our loyalty to the Constitution. We will be recreant to our official duties if we should remain unmoved, indifferent, passive, when a wanton assault has been launched against the integrity, independence, and stability of the sturdiest bulwark of the people’s rights and liberties of this country of ours: the Supreme Court.

53. LIGHTER MOMENTS. — As it happens to all persons and all human institutions, Congress also, we must confess, has its moments when it cannot see light. Because it failed to see light when it enacted section 14 of Act 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.

54. UNCONSTITUTIONAL. — The creation of a special Supreme Court by section 14 of Act 682, besides being null, void ab initio and irretrievably and flagrantly unconstitutional is essentially inimical to public interest, gives use to confusion and chaos in Philippine jurisprudence, and is liable to shake public confidence in the administration of justice.

55. JUDICIAL PHILOSOPHY OF SPECIAL COURTS. — 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 one strongly condemned in Peralta v. 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.

56. REVIVAL AND SURVIVAL OF SKEWED IDEOLOGY. — 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 specific state aims and purposes.

57. FREEDOM TO OPINE. — We cannot and we do not deny the perfect right and freedom of the servile kudizers of the pretended efficiency of dictatorial systems to loudly extol the virtues of a law which boldly supersedes express provisions of the Constitution, to create a second and special Supreme Court to wrest and supplant the jurisdiction of the legitimate Supreme Court.

58. OUR DUTY. — 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 sacrified 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.

59. OMINOUS PROTASIS. — Rumbling and ominous protasis of a judicial drama in which this Supreme Court will set a line of legal and judicial principles, doctrines and rules which may and will be opposed by the ones set up by the special Supreme Court.

60. SUPREME. — The existence of the special Supreme Court is incompatible with the existence of the constitutional Supreme Court. If both are supreme they are reciprocally destructive. They are mutually self-repelling, self-annulling. No matter of logadaedaly may justify the coexistence of twin "supremes."


D E C I S I O N


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:jgc:chanrobles.com.ph

"(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."cralaw virtua1aw library

The Solicitor General, in behalf of the prosecution, opposes the motion and in support of his opposition submits these propositions:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 v. 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 . . ."cralaw virtua1aw library

Before the adoption of the Constitution, the law on disqualification of judges was contained in the Code of Civil Procedure, sections 8 and 608. If said sections should be considered as parts of the then existing adjective legislation, Article VIII, section 13, 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. v. 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 above-cited 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 or in section 14 of the People’s Court Act which says:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 v. 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 v. Madison, supra, simply "can not become law."cralaw virtua1aw library

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 v. 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:jgc:chanrobles.com.ph

"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 1900. 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."cralaw virtua1aw library

In State v. Morrill (16 Ark., 384), the Supreme Court of Arkansas declared:jgc:chanrobles.com.ph

"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 . . . ."cralaw virtua1aw library

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 same 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 v. Moorhead, 174 N. W., 430, 431; 103 Neb., 811);

"Court is loath to say that any language of the constitution is merely directory." Scopes v. State, 289 S. W., 363, 366; 154 Tenn, 105; 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 been appointed 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:jgc:chanrobles.com.ph

"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. . . . ."cralaw virtua1aw library

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.

Separate Opinions


MORAN, C.J., concurring:chanrob1es virtual 1aw library

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 membership 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:chanrob1es virtual 1aw library

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:jgc:chanrobles.com.ph

"(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."cralaw virtua1aw library

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 v. Misa, L-263, dated February 27, and April 1, 1946.

In the first one we said:jgc:chanrobles.com.ph

"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 v. 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:jgc:chanrobles.com.ph

"(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? Qu
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