Constitional & Poloitical Law Cases

7/28/2019 Constitional & Poloitical Law Cases

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 202242 July 17, 2012

FRANCISCO I. CHAVEZ, Petitioner,vs.JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR., Respondents.

D E C I S I O N

MENDOZA, J .:

The issue at hand has been in hibernation until the unexpected departure of Chief Justice Renato C. Corona on May 29, 2012, and the nomination offormer Solicitor General Francisco I. Chavez (petitioner), as his potential successor, triggered the filing of this case. The issue has constantly been nagginlegal minds, yet remained dormant for lack of constitutional challenge.

As the matter is of extreme urgency considering the constitutional deadline in the process of selecting the nominees for the vacant seat of the ChiefJustice, the Court cannot delay the resolution of the issue a day longer. Relegating it in the meantime to the back burner is not an option.

Does the first paragraph of Section 8, Article VIII of the 1987 Constitution allow more than one (1) member of Congress to sit in the JBC? Is the practice ohaving two (2) representatives from each house of Congress with one (1) vote each sanctioned by the Constitution? These are t he pivotal questions to beresolved in this original action for prohibition and injunction.

Long before the naissance ( Birth in meaning) of the present Constitution, the annals (record of history of event) of history bear witness to the fact that theexercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government.Like their progenitor of American origins, both the Malolos Constitution1and the 1935 Constitution2had vested the power to appoint the members of theJudiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to thedeplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislativebody.3

Then, with the fusion of executive and legislative power under the 1973 Constitution,4the appointment of judges and justices was no longer subject to thescrutiny of another body. It was absolute, except that the appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary from political pressure and partisan activities,5the members of theConstitutional Commission saw the need to create a separate, competent and independent body to recommend nominees to the President. Thus, itconceived of a body representative of all the stakeholders in the judicial appointment process and called it the Judicial and Bar Council (JBC). Itscomposition, term and functions are provided under Section 8, Article VIII of the Constitution, viz:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officioChairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of lawa retired Member of the Supreme Court, and a representative of the private sector.

(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on AppointmentsOf the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justicefor two years, and the representative of the private sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.

(4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide inits annual budget the appropriations for the Council.

(5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as theSupreme Court may assign to it.

In compliance therewith, Congress, from the moment of the creation of the JBC, des ignated one representative to sit in the JBC to act as one of the exofficio members.6Perhaps in order to give equal opportunity to both houses to sit in the exclusive body, the House of Representatives and the Senatewould send alternate representatives to the JBC. In other words, Congress had only one (1) representative.

In 1994, the composition of the JBC was substantially altered. Instead of having only seven (7) members, an eighth (8th) member was added to the JBC atwo (2) representatives from Congress began sitting in the JBC - one from the House of Representatives and one from the Senate, with each having one-half (1/2) of a vote.7Then, curiously, the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the representatives from the Senate
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and the House of Representatives one full vote each.8At present, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondentsimultaneously sit in the JBC as representatives of the legislature.

It is this practice that petitioner has questioned in this petition,9setting forth the following

GROUNDS FOR ALLOWANCE OF THE PETITION

I

Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC shall have only one representative froCongress.

II

The framers of the Constitution clearly envisioned, contemplated and decided on a JBC composed of only seven (7) members.

III

Had the framers of the Constitution intended that the JBC composed of the one member from the Senate and one member from theHouse of Representatives, they could have easily said so as they did in the other provisions of the Constitution.

IV

The composition of the JBC providing for three ex-officio members is purposely designed for a balanced representation of each of thethree branches of the government.

V

One of the two (2) members of the JBC from Congress has no right (not even right) to sit in the said constitutional body and performthe duties and functions of a member thereof.

VI

The JBC cannot conduct valid proceedings as its composition is illegal and unconstitutional.10

On July 9, 2012, the JBC fi led its Comment.11It, however, abstained from recommending on how this constitutional issue should be disposed in graciousdeference to the wisdom of the Court. Nonetheless, the JBC was more than generous enough to offer the insights of various personalities previouslyconnected with it.12

Through the Office of the Solicitor General (OSG), respondents defended their position as members of the JBC in their Comment13filed on July 12, 2012.According to them, the crux of the controversy is the phrase "a representative of Congress."14Reverting to the basics, they cite Section 1, Article VI of theConstitution15to determine the meaning of the term

"Congress." It is their theory that the two houses, the Senate and the House of Representatives, are permanent and mandatory components of "Congresssuch that the absence of either divests the term of its substantive meaning as expressed under the Constitution. In sim plistic terms, the House ofRepresentatives, without the Senate and vice-versa, is not Congress.16Bicameralism, as the system of choice by the Framers, requires that both housesexercise their respective powers in the performance of its mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the Constitutionspeaks of "a representative from Congress," it should mean one representative each from both Houses which comprise the entire Congress.17

Tracing the subject provisions history, the respondents claim that when the JBC was established, the Framers originally envisioned a unicameral

legislative body, thereby allocating "a representative of the National Assembly" to the JBC. The phrase, however, was not modified to

aptly jive with the change to bicameralism, the legislative system finally adopted by the Constitutional Commission on July 21, 1986. According torespondents, if the Commissioners were made aware of the consequence of having a bicameral legislature instead of a unicameral one, they would havemade the corresponding adjustment in the representation of Congress in the JBC.18

The ambiguity having resulted from a plain case of inadvertence, the respondents urge the Court to look beyond the letter of the disputed provisionbecause the literal adherence to its language would produce absurdity and incongruity to the bicameral nature of Congress.19In other words, placing eitheof the respondents in the JBC will effectively deprive a house of Congress of its representation. In the same vein, the electorate represented by Membersof Congress will lose their only opportunity to participate in the nomination process for the members of the Judiciary, effectively diminishing the republicannature of the government.20
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The respondents further argue that the allowance of two (2) representatives of Congress to be members of the JBC does not render the latters purposenugatory. While they admit that the purpose in creating the JBC was to insulate appointments to the Judiciary from political influence, they likewisecautioned the Court that this constitutional vision did not intend to entirely preclude political factor in said appointments. Therefore, no evil should beperceived in the current set-up of the JBC because two (2) members coming from Congress, whose membership to certain political parties is irrelevant,does not necessarily amplify political partisanship in the JBC. In fact, the presence of two (2) members from Congress will most likely provide balance asagainst the other six (6) members who are undeniably presidential appointees.21

The Issues

In resolving the procedural and substantive issues arising from the petition, as well as the myriad of counter-arguments proffered by the respondents, theCourt synthesized them into two:

(1) Whether or not the conditions sine qua non for the exercise of the power of judicial review have been met in this case; and

(2) Whether or not the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom are members ofCongress, runs counter to the letter and spirit of the 1987 Constitution.

The Power of Judicial Review

In its Comment, the JBC submits that petitioner is clothed with locusstandito file the petition, as a citizen and taxpayer, who has been nominated to theposition of Chief Justice.22

For the respondents, however, petitioner has no "real interest" in questioning the constitutionality of the JBCs current composition.23

As outlined injurisprudence, it is well-settled that forlocus standito lie, petitioner must exhibit that he has been denied, or is about to be denied, of a personal right orprivilege to which he is entitled. Here, pet itioner failed to manifest his acceptance of his recommendation to the position of Chief Justice, thereby divestinghim of a substantial interest in the controversy. Without his name in the off icial list of applicants for the post, the respondents claim that there is no personstake on the part of pet itioner that would justify his outcry of unconstitutionality. Moreover, the mere allegation that this case is of transcendentalimportance does not excuse the waiver of the rule on locus standi, because, in the first place, the case lacks the requisites therefor. The respondents alsoquestion petitioners belated filing of the petition.24Being aware that the current composition of the JBC has been in practice since 1994, petitioners silencfor eighteen (18) years show that the constitutional issue being raised before the Court does not comply with the "earliest possible opportunity"requirement.

Before addressing the above issues in seriatim, the Court deems it proper to first ascertain the nature of the petition. Pursuant to the rule that the nature oan action is determined by the allegations therein and the character of the relief sought, the Court views the petition as essentially an action for declaratorrelief under Rule 63 of the 1997 Rules of Civil Procedure.25

The Constitution as the subject matter, and the validity and construction of Section 8 (1), Article VIII as the issue raised, the petition should properly beconsidered as that which would result in the adjudication of rights sans the execution process because the only relief to be granted is the very declaration

of the rights under the document sought to be construed. It being so, the original jurisdiction over the petition lies with the appropriate Regional Trial Court(RTC). Notwithstanding the fact that only questions of law are raised in the petition, an action for declaratory relief is not among those within the originaljurisdiction of this Court as provided in Section 5, Article VIII of the Constitution.26

At any rate, due to its serious implications, not only to government processes involved but also to the sanctity of the Constitution, the Court deems it moreprudent to take cognizance of it. After all, the petition is also for prohibition under Rule 65 seeking to enjoin Congress from sending two (2) representativewith one (1) full vote each to the JBC.

The Courts power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations, namely: (1) there must bean actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must havea personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question ofconstitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.27Generally,party will be allowed to litigate only when these conditions sine qua non are present, especially when the constitutionality of an act by a co-equal branch ogovernment is put in issue.

Anent locus standi, the question to be answered is this: does the party possess a personal stake in the outcome of the controversy as to assure that thereis real, concrete and legal conflict of rights and duties from the issues presented before the Court? In David v. Macapagal-Arroyo,28the Court summarizedthe rules on locus standi as culled from jurisprudence. There, it was held that taxpayers, voters, concerned citizens, and legislators may be accordedstanding to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegadisbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of theelection law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settledearly; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

In public suits, the plaintiff, representing the general public, asserts a "public right" in assailing an allegedly illegal o fficial action. The plaintiff may be aperson who is affected no differently from any other person, and can be suing as a "stranger," or as a "citizen" or "taxpayer." Thus, taxpayers have beenallowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that pubfunds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure ofpublic funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.29
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In this case, petitioner seeks judicial intervention as a taxpayer, a concerned citizen and a nominee to the position of Chief Justice of the Supreme Court.As a taxpayer, petitioner invokes his right to demand that the taxes he and the rest of the citizenry have been paying to the government are spent for lawfpurposes. According to petitioner, "since the JBC derives financial support for its functions, operation and proceedings from taxes paid, petitionerpossesses as taxpayer both right and legal standing to demand that the JBCs proceedings are not tainted with illegality and that its composition andactions do not violate the Constitution."30

Notably, petitioner takes pains in enumerating past actions that he had brought before the Court where his legal standing was sustained. Although thisinventory is unnecessary to establish locus standibecause obviously, not every case before the Court exhibits similar issues and facts, the Courtrecognizes the petitioners right to sue in this case. Clearly, petitioner has the legal standing to bring the present action because he has a personal stake i

the outcome of this controversy.

The Court disagrees with the respondents contention that petitioner lost his standing to sue because he is not an official nominee for the post of ChiefJustice. While it is true that a "personal stake" on the case is imperative to have locus standi, this is not to say that only official nominees for the post ofChief Justice can come to the Court and question the JBC composition for being unconstitutional. The JBC likewise screens and nominates other membeof the Judiciary. Albeit heavily publicized in this regard, the JBCs duty is not at all limited to the nominations for the highest magistrate in the land. A vastnumber of aspirants to judicial posts all over the country may be affected by the Courts ruling. More importantly, the legality of the very process ofnominations to the positions in the Judiciary is the nucleus of the controversy. The Court considers this a constitutional issue that must be passed upon,lest a constitutional process be plagued by misgivings, doubts and worse, mistrust. Hence, a citizen has a right to bring this question to the Court, clothedwith legal standing and at the same time, armed with issues of transcendental importance to society. The cla im that the composition of the JBC is illegaland unconstitutional is an object of concern, not just for a nominee to a judicial post, but for all citizens who have the right to seek judicial intervention forrectification of legal blunders.

With respect to the question of transcendental importance, it is not difficult to perceive from the opposing arguments of the parties that the determinantsestablished in jurisprudence are attendant in this case: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case

of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any otherparty with a more direct and specific interest in the questions being raised.31The allegations of constitutional violations in this case are not empty attackson the wisdom of the other branches of the government. The allegations are substantiated by facts and, therefore, deserve an evaluation from the Court.The Court need not elaborate on the legal and societal ramifications of the issues raised. It cannot be gainsaid that the JBC is a constitutional innovationcrucial in the selection of the magistrates in our judicial system.

The Composition of the JBC

Central to the resolution of the foregoing petition is an understanding of the composition of the JBC as stated in the f irst paragraph of Section 8, Article VIIof the Constitution. It reads:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officioChairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of lawa retired Member of the Supreme Court, and a representative of the private sector.

From a simple reading of the above-quoted provision, it can readily be discerned that the provision is clear and unambiguous. The first paragraph calls forthe creation of a JBC and places the same under the supervision of the Court. Then it goes to its composition where the regular members are enumeratea representative of the Integrated Bar, a professor of law, a retired member of the Court and a representative from the private sector. On the second partlies the crux of the present controversy. It enumerates the ex officio or special members of the JBC composed of the Chief Justice, who shall be itsChairman, the Secretary of Justice and "a representative of Congress."

As petitioner correctly posits, the use of the singular letter "a" preceding "representative of Congress" is unequivocal and leaves no room for any otherconstruction. It is indicative of what the members of the Constitutional Commission had in mind, that is, Congress may designate only one (1)representative to the JBC. Had it been the intention that more than one (1) representative from the legislature would sit in the JBC, the Framers couldhave, in no uncertain terms, so provided.

One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from ambiguity, it must be givenits literal meaning and applied without attempted interpretation.32It is a well-settled principle of constitutional construction that the language employed inthe Constitution must be given their ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitutionshould be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and

negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say.

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Verba legis non est recedendum from the words of a statute there should be no departure.34

The raison d tre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional provisions are couched express theobjective sought to be attained;35and second, because the Constitution is not primarily a lawyers document but essentially that of the people, in whoseconsciousness it should ever be present as an important condition for the rule of law to prevail.36

Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, itscorrect construction may be made clear and specific by considering the company of words in which it is founded or with which it is associated.37This isbecause a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, thus, be modified or restricted bythe latter.38The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of thestatute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. A statute must be so construed as toharmonize and give effect to all its provisions whenever possible.39In short, every meaning to be given to each word or phrase must be ascertained fromthe context of the body of the statute since a word or phrase in a statute is always used in association with other words or phrases and its meaning may bmodified or restricted by the latter.
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Applying the foregoing principle to this case, it becomes apparent that the word "Congress" used in Article VIII, Section 8(1) of the Constitution is used inits generic sense. No particular allusion whatsoever is made on whether the Senate or the House of Representatives is being referred to, but that, in eithecase, only a singular representative may be allowed to sit in the JBC. The foregoing declaration is but sensible, since, as pointed out by an esteemedformer member of the Court and consultant of the JBC in his memorandum,40"from the enumeration of the membership of the JBC, it is patent that eachcategory of members pertained to a single individual only."41

Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity, contradiction, injustice, or defeat the cleapurpose of the lawmakers.42Not any of these instances, however, is present in the case at bench. Considering that the language of the subjectconstitutional provision is plain and unambiguous, there is no need to resort extrinsic aids such as records of the Constitutional Commission.

Nevertheless, even if the Court should proceed to look into the minds of the members of the Constitutional Commission, it is undeniable from the recordsthereof that it was intended that the JBC be composed of seven (7) members only. Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about the appointments of members of the Supreme Court and judges of the lower courts. At present it isthe President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission onAppointment. In this proposal, we would like to establish a new office, a sort of a board composed of seven members called the Judicial and Bar Council.And while the President will still appoint the member of the judiciary, he will be limited to the recommendees of this Council.

x x x x x x x x x

MR. RODRIGO. Ofthe seven members of the Judicial and Bar Council, the President appoints four of them who are regular members.

x x x x x x x x x

MR. CONCEPCION. The only purpose of the Committee is to eliminate partisan politics.43

x x x x x x x x x

MR. RODRIGO. If my amendment is approved, then the provision will be exactly the same as the provision in the 1935 Constitution, Article VIII, Section 5

x x x x x x x x x

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a diminution of the appointing power of thehighest magistrate of the land, of the

President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people who are not elected by thepeople but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on appointments. The members of the Judiciarywill be segregated from the rest of the government. Even a municipal judge cannot be appointed by the President except upon recommendation ornomination of the three names by this Committee of seven people, commissioners of the Commission on Elections, the COA and the Commission on CivServiceeven ambassadors, generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of ourgovernment in the appointment of high-ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being effective at all because this Council willbe under the influence of the President. Four out of seven are appointees of the President and they can be reappointed when their term ends. Therefore,they would be kowtow the President. A fifth member is the Minister of Justice, an alter ego of the President. Another member represents the Legislature. all probability, the controlling part in the legislature belongs to the President and, therefore, this representative form the National Assembly is also under thinfluence of the President. And may I say, Mr. Presiding Officer, that event the Chief Justice of the Supreme Court is an appointee of the President. So it i

futile he will be influence anyway by the President.44

[Emphases supplied]

At this juncture, it is worthy to note that the seven-member composition of the JBC serves a practical purpose, that is, to provide a solution should there ba stalemate in voting. This underlying reason leads the Court to conclude that a single vote may not be divided into half (1/2), between two representativeof Congress, or among any of the sitt ing members of the JBC for that matter. This unsanctioned practice can possibly cause disorder and eventuallymuddle the JBCs voting process, especially in the event a tie is reached. The aforesaid purpose would then be rendered illusory, defeating the precisemechanism which the Constitution itself created. While it would be unreasonable to expect that the Framers provide for every possible scenario, it issensible to presume that they knew that an odd composition is the best means to break a voting deadlock.

The respondents insist that owing to the bicameral nature of Congress, the word "Congress" in Section 8(1), Article VIII of the Constitution should be readas including both the Senate and the House of Representatives. They theorize that it was so worded because at the time the said provision was beingdrafted, the Framers initially intended a unicameral form of Congress.
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Then, when the Constitutional Commission eventually adopted a bicameral form of Congress, the Framers, through oversight, failed to amend Article VIIISection 8 of the Constitution.45On this score, the Court cites the insightful analysis of another member of the Court and JBC consultant, retired JusticeConsuelo Ynares-Santiago.46Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commissions desire "to have in the Counca representation for the major elements of the community."xxxThe ex-officio members of the Council consist of representatives from the three mainbranches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII,Section 8(1) was to treat each ex-officiomember as representing one co-equal branch of government.xxxThus, the JBC was designed to haveseven vot ing memberswith the three ex-officio members having equal say in the choice of judicial nominees.

x x x x x x x x x

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative powers underArticle VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, iconstitutionally treated as another co-equal branch of in the matter of its representative in the JBC. On the other hand, the exercise of legislative andconstituent powers requires the Senate and House of Representatives to coordinate and act as dist inct bodies in furtherance of Congress role under ourconstitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two houses of Congress as they relate inter se,no such dichotomy need be made when Congress interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to considerations that any of itsrepresentatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives acas such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenlybestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoringsupplied]

More than the reasoning provided in the above discussed rules of constitutional construction, the Court finds the above thesis as the paramountjustification of the Courts conclusion that "Congress," in the context of JBC representation, should be considered as one body. It is evident that thedefinition of "Congress" as a bicameral body refers to its primary function in government - to legislate.47In the passage of laws, the Constitution is explicit the distinction of the role of each house in the process. The same holds true in Congress non-legislative powers such as, inter alia, the power ofappropriation,48the declaration of an existence of a state of war,49canvassing of electoral returns for the President and Vice-President,50andimpeachment.51In the exercise of these powers, the Constitution employs precise language in laying down the roles which a particular house plays,regardless of whether the two houses consummate an official act by voting jointly or separately. An inter-play between the two houses is necessary in therealization of these powers causing a vivid dichotomy that the Court cannot simply discount. Verily, each house is constitutionally granted with powers andfunctions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checksand balances, to the other branches of government.

This, however, cannot be said in the case of JBC representation because no liaison between the two houses exists in the workings of the JBC. Nomechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Hence, the term"Congress" must be taken to mean the entire legislative department. A fortiori, a pretext of oversight cannot prevail over the more pragmatic scheme whic

the Constitution laid with fi rmness, that is, that the JBC has a seat for a single representative of Congress, as one of the co-equal branches of governmen

Doubtless, the Framers of our Constitution intended to create a JBC as an innovative solution in response to the public clamor in favor of eliminatingpolitics in the appointment of members of the Judiciary.52To ensure judicial independence, they adopted a holistic approach and hoped that, in creating aJBC, the private sector and the three branches of government would have an active role and equal voice in the selection of the members of the Judiciary.

Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than one voice speak, whether with one full vote or onehalf (1/2) a vote each, would, as one former congressman and member of the JBC put it, "negate the principle of equality among the three branches ofgovernment which is enshrined in the Constitution."53

To quote one former Secretary of Justice:

The present imbalance in voting power between the Legislative and the other sectors represented in the JBC must be corrected especially whenconsidered vis--vis the avowed purpose for its creation, i.e., to insulate the appointments in the Judiciary against political influence. By allowing bothhouses of Congress to have a representative in the JBC and by giving each representative one (1) vote in the Council, Congress, as compared to the othe

members of the JBC, is accorded greater and unwarranted influence in the appointment of judges.54[Emphasis supplied]

It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members only. Thus, any inclusion of another member,whether with one whole vote or half (1/2) of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equalvoice with other members of the JBC in recommending appointees to the Judiciary is explicit. Any circumvention of the constitutional mandate should notbe countenanced for the Constitution is the supreme law of the land. The Constitution is the basic and paramount law to which all other laws must conformand to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be thetides of time. I t cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of thegovernment and the people who run it.55Hence, any act of the government or of a public official or employee which is contrary to the Constitution is illeganull and void.

As to the effect of the Courts finding that the current composition of the JBC is unconstitutional, it bears mentioning that as a general rule, anunconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been
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passed at all.56This rule, however, is not absolute. In the interest of fair play under the doctrine of operative facts, actions previous to the declaration ofunconstitutionality are legally recognized. They are not nullified. In Planters Products, Inc. v. Fertiphil Corporation,57the Court explained:

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play.1wphi1 It nullifies the effects of anunconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may haveconsequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was

applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by amunicipality in reliance upon a law creating it.

Considering the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in thecurrent composition of the JBC, all its prior official actions are nonetheless valid.

At this point, the Court takes the initiative to clarify that it is not in a position to determine as to who should remain as the sole representative of Congress the JBC. This is a matter beyond the province of the Court and is best left to the determination of Congress.

Finally, while the Court finds wisdom in respondents' contention that both the Senate and the House of Representatives should be equally represented inthe JBC, the Court is not in a position to stamp its imprimatur on such a construction at the risk of expanding the meaning of the Constitution as currentlyworded. Needless to state, the remedy lies in the amendment of this constitutional provision. The courts merely give effect to the lawgiver's intent. Thesolemn power and duty of the Court to interpret and apply the law does not include the power to correct, by reading into the law what is not written therein

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council IS declared UNCONSTITUTIONAL. The

Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one ( 1) member of Congress will sit as a representative in its proceedings, inaccordance with Section 8( 1 ), Article

VIII of the 1987 Constitution.This disposition is immediately executory.

SO ORDERED.

JOSE CATRAL MENDOZAAssociate Justice

WE CONCUR:
http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jul2012/gr_202242_2012.html#fnt56


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EN BANC

[G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, pet i t ioner, vs. GOVERNMENT SERVICE INSURANCESYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATIONand OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

D E C I S I O N

BELLOSILLO, J.:

The Filipino First Policyenshrined in the 1987 Constitution, i.e., in the grant of rights, privilegesand concessions covering the national economy and patrimony, the State shall give preference toqualified Filipinos,i[1] is invoked by petitioner in its bid to acquire 51% of the shares of the Manila HoteCorporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that thprovision is not self-executing but requires an implementing legislation for its enforcement. Corollarilythey ask whether the 51% shares form part of the national economy and patrimony covered by theprotective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuanto the privatization program of the Philippine Government under Proclamation No. 50 dated December 1986, decided to sell through public bidding 30% to 51% of the issued and outstandinshares of respondent MHC. The winning bidder, or the eventual strategic partner, is to providmanagement expertise and/or an international marketing/reservation system, and financial support t

strengthen the profitability and performance of the Manila Hotel.ii[2]

In a close bidding held on 1September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipincorporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, anRenong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the samnumber of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state -

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October 23,1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase theBlock of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC theManagement Contract, International Marketing/Reservation System Contract or othertype of contract specified by the Highest Bidder in its strategic plan for the ManilaHotel x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale Agreementwith GSIS x x x x

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after thefollowing conditions are met:


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a. Execution of the necessary contracts with GSIS/MHC not later than October23, 1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee onPrivatization)/ OGCC (Office of the Government Corporate Counsel) are obtained. iii[3]

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and th

execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 Septembe1995 matched the bid price of P44.00 per share tendered by Renong Berhad.iv[4] In a subsequent lettedated 10 October 1995 petitioner sent a managers check issued by Philtrust Bank for Thirty -threMillion Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, MessrsRenong Berhadx x x xv[5] which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender othe matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS anconsummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting anconsummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Bancafter it was referred tit by the First Division. The case was then set for oral arguments with former Chief Justice Enrique MFernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submitsthat the Manila Hotel has been identified with the Filipino nation and has practically become a historicamonument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of anearlier generation of Filipinos who believed in the nobility and sacredness of independence and it

power and capacity to release the full potential of the Filipino people. To all intents and purposes, it habecome a part of the national patrimony.vi[6] Petitioner also argues that since 51% of the shares of thMHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, government-owned and controlled corporation, the hotel business of respondent GSIS being a part o

the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec10, second par., Art. XII, 1987 Constitution, applies.vii[7]

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and itsbusiness also unquestionably part of the national economy petitioner should be preferred after it hamatched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, thHighest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other QualifieBidders that have validly submitted bids provided that these Qualified Bidders are willing to match thhighest bid in terms of price per share. viii[8]

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 198

Constitution is merely a statement of principle and policy since it is not a self-executing provision anrequires implementing legislation(s) x x x x Thus, for the said provision to operate, there must bexisting laws to lay down conditions under which business may be done.ix[9]

Second, granting that this provision is self-executing, Manila Hotel does not fall under the termnational patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleumand other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and faunaand all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and seconparagraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks othe guests who have slept in the hotel and the events that have transpired therein which make the hotehistoric, these alone do not make the hotel fall under the patrimonyof the nation. What is more, th


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mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutionaprovision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares othe corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% othe equity of the MHC cannot be considered part of the national patrimony. Moreover, if the dispositioof the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it righfrom the beginning and not after it had lost in the bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides thatfor any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to theother Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willinto match the highest bid in terms of price per share, is misplaced. Respondents postulate that thprivilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, thHighest Bidder cannot be awarded the Block of Shares . Thus the submission by petitioner of matching bid is premature since Renong Berhad could still very well be awarded the block of shareand the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken

place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail sincrespondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it diabuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail apetitioner has no clear legal right to what it demands and respondents do not have an imperative dutto perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance andadministration of a nation. It is supreme, imperious, absolute and unalterable except by the authoritfrom which it emanates. It has been defined as the fundamental and paramount law of the nation.x[10]

prescribes the permanent framework of a system of government, assigns to the different departmenttheir respective powers and duties, and establishes certain fixed principles on which government ifounded. The fundamental conception in other words is that it is a supreme law to which all other lawmust conform and in accordance with which all private rights must be determined and all publiauthority administered.xi[11] Under the doctrine of constitutional supremacy, if a law or contract violateany norm of the constitution that law or contract whether promulgated by the legislative or by thexecutive branch or entered into by private persons for private purposes is null and void and withouany force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law othe nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisioncommand the legislature to enact laws and carry out the purposes of the framers who merely establisan outline of government providing for the different departments of the governmental machinery ansecuring certain fundamental and inalienable rights of citizens.xii[12] A provision which lays down general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executingBut a provision which is complete in itself and becomes operative without the aid of supplementary oenabling legislation, or that which supplies sufficient rule by means of which the right it grants may beenjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the naturand extent of the right conferred and the liability imposed are fixed by the constitution itself, so that thecan be determined by an examination and construction of its terms, and there is no language indicatingthat the subject is referred to the legislature for action. xiii[13]


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As against constitutions of the past, modern constitutions have been generally drafted upon different principle and have often become in effect extensive codes of laws intended to operate directlupon the people in a manner similar to that of statutory enactments, and the function of constitutionaconventions has evolved into one more like that of a legislative body. Hence, unless it is expresslprovided that a legislative act is necessary to enforce a constitutional mandate, the presumption now ithat all provisions of the constitution are self-executing. If the constitutional provisions are treated a

requiring legislation instead of self-executing, the legislature would have the power to ignore anpractically nullify the mandate of the fundamental law. xiv[14] This can be cataclysmic. That is why thprevailing view is, as it has always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x x x x Unless the contrary is clearly intended, the provisions of the Constitution should beconsidered self-executing, as a contrary rule would give the legislature discretion to determine when, orwhether, they shall be effective. These provisions would be subordinated to the will of the lawmakingbody, which could make them entirely meaningless by simply refusing to pass the needed implementingstatute.xv[15]Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self

executing, as they quote from discussions on the floor of the 1986 Constitutional Commission -

MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee onStyle. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS, can it be understoodas a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we notmake it clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the wordQUALIFIED?

MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As againstaliens or over aliens ?

MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED because

the existing laws or prospective laws will always lay down conditions under which business may bedone. For example, qualifications on capital, qualifications on the setting up of other financialstructures, et cetera (underscoring supplied by respondents).

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO. Yes.xvi[16]

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appeathat it is non-self-executing but simply for purposes of style. But, certainly, the legislature is noprecluded from enacting further laws to enforce the constitutional provision so long as the contemplatedstatute squares with the Constitution. Minor details may be left to the legislature without impairing thself-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate thexercise of powers directly granted by the constitution, further the operation of such a provisionprescribe a practice to be used for its enforcement, provide a convenient remedy for the protection othe rights secured or the determination thereof, or place reasonable safeguards around the exercise othe right. The mere fact that legislation may supplement and add to or prescribe a penalty for theviolation of a self-executing constitutional provision does not render such a provision ineffective in thabsence of such legislation. The omission from a constitution of any express provision for a remedy foenforcing a right or liability is not necessarily an indication that it was not intended to be self-executingThe rule is that a self-executing provision of the constitution does not necessarily exhaust legislativepower on the subject, but any legislation must be in harmony with the constitution, further the exercis


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of constitutional right and make it more available. xvii[17] Subsequent legislation however does nonecessarily mean that the subject constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII iimplied from the tenor of the first and third paragraphs of the same section which undoubtedly are noself-executing.xviii[18] The argument is flawed. If the first and third paragraphs are not self-executinbecause Congress is still to enact measures to encourage the formation and operation of enterprisefully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate anexercise authority over foreign investments within its national jurisdiction, as in the third paragraphthen a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by itlanguage require any legislation in order to give preference to qualified Filipinos in the grant of rightsprivileges and concessions covering the national economy and patrimony. A constitutional provisiomay be self-executing in one part and non-self-executing in another.xix[19]

Even the cases cited by respondents holding that certain constitutional provisions are merelstatements of principles and policies, which are basically not self-executing and only placed in thConstitution as moral incentives to legislation, not as judicially enforceable rights - are simply not ipoint. Basco v. Philippine Amusements and Gaming Corporationxx[20] speaks of constitutional provision

on personal dignity,xxi[21] the sanctity of family life,xxii[22] the vital role of the youth in nation-building,xxiii[23] thpromotion of social justice,xxiv[24] and the values of education.xxv[25] Tolentino v. Secretary of Financexxvi[

refers to constitutional provisions on social justice and human rights xxvii[27] and on education.xxviii[28] LastlyKilosbayan, Inc. v. Moratoxxix[29] cites provisions on the promotion of general welfare,xxx[30] the sanctity ofamily life,xxxi[31] the vital role of the youth in nation-buildingxxxii[32] and the promotion of total human liberatioand development.xxxiii[33] A reading of these provisions indeed clearly shows that they are not judiciallenforceable constitutional rights but merely guidelines for legislation. The very terms of the provisionmanifest that they are only principles upon which legislations must be based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positivcommand which is complete in itself and which needs no further guidelines or implementing laws orules for its enforcement. From its very words the provision does not require any legislation to put it inoperation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant orights, privileges, and concessions covering national economy and patrimony, the State shall giv

preference to qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when ouConstitution declares that a right exists in certain specified circumstances an action may be maintaineto enforce such right notwithstanding the absence of any legislation on the subject; consequently, there is no statute especially enacted to enforce such constitutional right, such right enforces itself bits own inherent potency and puissance, and from which all legislations must take their bearingsWhere there is a right there is a remedy. Ubi jus ibi remedium.

As regards ournational patrimony, a member of the 1986 Constitutional Commissionxxxiv[34] explains

The patrimony of the Nation that should be conserved and developed refers not only to our rich

natural resources but also to the cultural heritage of our race. It also refers to our intelligence in arts,sciences and letters. Therefore, we should develop not only our lands, forests, mines and othernatural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimonypertains to heritage.xxxv[35] When thConstitution speaks ofnational patrimony, it refers not only to the natural resources of the Philippinesas the Constitution could have very well used the term natural resources, but also to the culturaheritage of the Filipinos.

Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it warestrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino


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Formerly a concourse for the elite, it has since then become the venue of various significant eventwhich have shaped Philippine history. It was called the Cultural Center of the 1930s. It was the site othe festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official GuesHouse of the Philippine Government it plays host to dignitaries and official visitors who are accordethe traditional Philippine hospitality.xxxvi[36]

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memorof a City.xxxvii[37] During World War II the hotel was converted by the Japanese Military Administration inta military headquarters. When the American forces returned to recapture Manila the hotel was selecteby the Japanese together with Intramuros as the two (2) places for their final stand. Thereafter, in the1950s and 1960s, the hotel became the center of political activities, playing host to almost everpolitical convention. In 1970 the hotel reopened after a renovation and reaped numerous internationarecognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of afailed coup d etatwhere an aspirant for vice-president was proclaimed President of the PhilippinRepublic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failuresloves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity

associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel habecome part of our national economy and patrimony. For sure, 51% of the equity of the MHC comewithin the purview of the constitutional shelter for it comprises the majority and controlling stock, so thaanyone who acquires or owns the 51% will have actual control and management of the hotel. In thiinstance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hoteedifice stands. Consequently, we cannot sustain respondents claim that the Filipino First Policprovision is not applicable since what is being sold is only 51% of the outstanding shares of thcorporation, not the Hotel building nor the land upon which the building stands. xxxviii[38]

The argument is pure sophistry. The term qualified Filipinos as used in our Constitution alsincludes corporations at least 60% of which is owned by Filipinos. This is very clear from theproceedings of the 1986 Constitutional Commission -

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendmentwould consist in substituting the words QUALIFIED FILIPINOS with the following: CITIZENS OFTHE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL ORCONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.

x x x x

MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise aquestion. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation

wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should onlybe 100-percent Filipino.

MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only toindividuals and not to juridical personalities or entities.

MR. MONSOD. We agree, Madam President.xxxix[39]


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x x x x

MR. RODRIGO. Before we vote, may I request that the amendment be read again.

MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES ANDCONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATESHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos here, as

intended by the proponents, will include not only individual Filipinos but also Filipino-controlledentities or entities fully-controlled by Filipinos.xl[40]

The phrasepreference to qualified Filipinos was explained thus -

MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate hisamendment so that I can ask a question.

MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THENATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TOQUALIFIED FILIPINOS.

MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipinoenterprise is also qualified, will the Filipino enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipinostill be preferred?

MR. NOLLEDO. The answer is yes.

MR. FOZ. Thank you.xli[41]

Expounding further on the Filipino First Policyprovision Commissioner Nolledo continues

MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE SHALLGIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so -called Filipino Firstpolicy. That means that Filipinos should be given preference in the grant of concessions, privilegesand rights covering the national patrimony.xlii[42]

The exchange of views in the sessions of the Constitutional Commission regarding the subjecprovision was still further clarified by Commissioner Nolledoxliii[43] -

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It isbetter known as the FILIPINO FIRST Policy x x x x This provision was never found in previousConstitutions x x x x

The term qualified Filipinos simply means that preference shall be given to those citizens who canmake a viable contribution to the common good, because of credible competence and efficiency. Itcertainly does NOT mandate the pampering and preferential treatment to Filipino citizens ororganizations that are incompetent or inefficient, since such an indiscriminate preference would be

counterproductive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to be madebetween a qualified foreigner and a qualified Filipino, the latter shall be chosen over the former.

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSISand selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordancwith its own guidelines so that the sole inference here is that petitioner has been found to bepossessed of proven management expertise in the hotel industry, or it has significant equity ownershiin another hotel company, or it has an overall management and marketing proficiency to successfulloperate the Manila Hotel.xliv[44]


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The penchant to try to whittle away the mandate of the Constitution by arguing that the subjecprovision is not self-executory and requires implementing legislation is quite disturbing. The attempt tviolate a clear constitutional provision - by the government itself - is only too distressing. To adopt suca line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some othe provisions of the Constitution which evidently need implementing legislation have juridical life otheir own and can be the source of a judicial remedy. We cannot simply afford the government a

defense that arises out of the failure to enact further enabling, implementing or guiding legislation. Ifine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt -

The executive department has a constitutional duty to implement laws, including the Constitution,even before Congress acts - provided that there are discoverable legal standards for executive action.When the executive acts, it must be guided by its own understanding of the constitutional command andof applicable laws. The responsibility for reading and understanding the Constitution and the laws is notthe sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps theCourt, for an interpretation every time the executive is confronted by a constitutional command. That isnot how constitutional government operates.xlv[45]

Respondents further argue that the constitutional provision is addressed to the State, not trespondent GSIS which by itself possesses a separate and distinct personality. This argument again iat best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with theprior approval of the State acting through respondent Committee on Privatization. As correctly pointedout by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSISand MHC a state action. In constitutional jurisprudence, the acts of persons distinct from thgovernment are considered state action covered by the Constitution (1) when the activity it engages iis a public function; (2) when the government is so significantly involved with the private actor as tomake the government responsible for his action; and, (3) when the government has approved oauthorized the action. It is evident that the act of respondent GSIS in selling 51% of its share irespondent MHC comes under the second and third categories of state action. Without doubtherefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the Statand therefore subject to the constitutional command.xlvi[46]

When the Constitution addresses the State it refers not only to the people but also to thegovernment as elements of the State. After all, government is composed of three (3) divisions of powe- legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State iscorrespondingly directed to the three (3) branches of government. It is undeniable that in this case thsubject constitutional injunction is addressed among others to the Executive Department anrespondent GSIS, a government instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winningbidder. The bidding rules expressly provide that the highest bidder shall only be declared the winninbidder after it has negotiated and executed the necessary contracts, and secured the requisitapprovals. Since the Filipino First Policyprovision of the Constitution bestows preference on qualifieFilipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declarethe winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they undeobligation to enter into one with the highest bidder. For in choosing the awardee respondents armandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to bknown to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules benullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws ancontracts must conform with the fundamental law of the land. Those which violate the Constitution lose


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their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [i]f for any reasonthe Highest Bidder cannot bawarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submittebids provided that these Qualified Bidders are willing to match the highest bid in terms of price peshare.xlvii[47] Certainly, the constitutional mandate itself is reason enough not to award the bloc

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