FIRST DIVISION [ G.R. No. 191755, June 19, 2019 ] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. EVANGELINE TUAZON Y CRUZ AND EDGAR MACOSPAG Y NIEVES, ACCUSED-APPELLANTS

The Implementing Rules and Regulations of Section 21 of R.A. No. 9165 reads:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.- The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, finally, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis Supplied]

The saving clause found in the IRR recognizes that there is no perfect chain of custody and such an expectation cannot be used as a standard for conviction. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items.^[3]

In Saraum v. People,^[4] the Court held that despite the non-compliance with the inventory and picture taking requirements, the confiscated drug can still be sufficient to convict the accused, thus:

In ascertaining the identity of the illegal drugs and/or drug paraphernalia presented in court as the ones actually seized from the accused, the prosecution must show that: (a) the prescribed procedure under Section 21(1), Article II of R.A. No. 9165 has been complied with or falls within the saving clause provided in Section  21 (a),    Article   II   of the   Implementing   Rules  and Regulations (IRR) of R.A. No. 9165; and (b) there was an unbroken link (not perfect link) in the chain of custody with respect to the confiscated items.

Although Section 21(1) of R.A. No. 9165 mandates that the apprehending team must immediately conduct a physical inventory of the seized items and photograph them, non-compliance therewith is not fatal as long as there is a justifiable ground and as long as the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending team. While nowhere in the prosecution evidence show the "justifiable ground" which may excuse the police operatives involved in the buy-bust operation from making the physical inventory and taking a photograph of the drug paraphernalia confiscated and/or seized, such omission shall not render Saraum's arrest illegal or the items seized/confiscated from him as inadmissible in evidence. Said "justifiable ground" will remain unknown in the light of the apparent failure of Saraum to specifically challenge the custody and safekeeping or the issue of disposition and preservation of the subject drug paraphernalia before the trial court. He cannot be allowed too late in the day to question the police officers' alleged non-compliance with Section 21 for the first time on appeal.

The chain of custody rule requires the identification of the persons who handled the confiscated items for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug paraphernalia from the time they were seized from the accused until the time they are presented in court. Section l(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, implementing R.A. No. 9165, defines chain of custody as follows:

Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.

In Mallillin v. People, the Court discussed how the chain of custody of seized items should be established, thus:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.   It would include testimony

about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

While the procedure on the chain of custody should be perfect and unbroken, in reality, it is almost always impossible to obtain an unbroken chain. Thus, failure to strictly comply with Section 21(1), Article II of R.A. No. 9165 does not necessarily render an accused person's arrest illegal or the items seized or confiscated from him inadmissible.

xxx Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will be accorded it by the courts, xxx

We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight - evidentiary merit or probative value -to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case.

The most important factor is the preservation of the integrity and evidentiary value of the seized items. In this case, the prosecution was able to demonstrate that the integrity and evidentiary value of the confiscated drug paraphernalia had not been compromised because it established the crucial link in the chain of custody of the seized items from the time they were first discovered until they were brought to the court for examination. Even though the prosecution failed to submit in evidence the physical inventory and photograph of the drug paraphernalia, this will not render Saraum's arrest illegal or the items seized from him inadmissible. There is substantial compliance by the police as to the required procedure on the custody and control of the confiscated items. The succession of events established by evidence and the overall handling of the seized items by specified individuals all show that the evidence seized were the same evidence subsequently identified and testified to in open court.

There can be no doubt as to the integrity of the confiscated drugs herein considering that their whereabouts had been accounted for from the time of confiscation and marking until their eventual presentation in court. PO2 Tomas A. Culiat, Jr. testified that when he received the prohibited drug from accused Macospag, he first placed the latter under arrest and immediately marked the contraband with "Exh. A ECT/ENM 8/26/05." The three (3) sachets recovered from accused Tuazon had also been immediately marked ("B-l ECT/ENM 8/26/05," "B-2 ECT/ENM 8/26/05" and "B-3 ECT/ENM 8/26/05") in their presence. Based on the testimonies and evidence, only PO2 Culiat had been in possession of the contraband until he surrendered the same to the Crime Laboratory for the necessary test. The forensic chemist also testified to have received four (4) sachets with the same markings as testified by PO2 Culiat. He, thereafter, issued a report confirming that the substance confiscated from them were shabu and which consequently had been submitted to the trial court.

Since the integrity of the confiscated drugs had been preserved, the conviction of the accused-appellants should be sustained.

THIRD DIVISION [ G.R. No. 196892, December 05, 2018 ] NAREDICO, INC., PETITIONER, V. KROMINCO, INC., RESPONDENT.

There is no vested right to mining rights, save for patented mining claims that were granted under the Philippine Bill of 1902.

When the Philippines was still under Spanish rule, the Royal Decree of May 14, 1867, or the Spanish Mining Law, was the prevailing law for the exploration and use of our mineral lands. When the Americans took control of the Philippines, they governed our country through a series of organic acts which effectively acted as our Constitution from 1900 to 1935. Among these was the Philippine Bill of 1902, through which the United States Congress assumed control over the Philippines.^[120]

The Philippine Bill of 1902 declared all valuable mineral deposits in public lands to be open to "exploration, occupation[,] and purchase"^[121] by Americans and Filipinos. It required the locator of a mineral claim to record ^[122]it in the mining recorder of the district it was found in within 30 days, with no less than US$100.00 worth of labor or improvements of the same value each year.^[123]

Yinlu Bicol Mining Corp. v. Trans-Asia Oil and Energy Development Corp.^[124] explained:

Pursuant to the Philippine Bill of 1902, therefore, once a mining claim was made or a mining patent was issued over a parcel of land in accordance with the relative provisions of the Philippine Bill of 1902, such land was considered private property and no longer part of the public domain. The claimant or patent holder was the owner of both the surface of the land and of the minerals found underneath.^[125]

However, once the 1935 Constitution took effect, the alienation of mineral lands, among other natural resources of the State, was expressly prohibited:

Article XIII

Conservation and Utilization of Natural Resources

SECTION 1. All agricultural timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and limit of the grant.^[126] (Emphasis supplied)

Commonwealth Act No. 137 or the Mining Act, as amended,^[127] echoing the prohibition in the 1935 Constitution, granted only lease rights to mining claimants:

SECTION 5. Mineral Deposits Open to Location and Lease. Subject to any existing rights or reservations, all valuable mineral deposits in public land including timber or forest land as defined in Presidential Decree No. 389, otherwise known as the Forestry Reform Code or in private land not closed to mining location, and the land which they are found, shall be free and open to prospecting, occupation, location and lease.^[128]

Both the 1943 and 1973 Constitutions maintained the proscription on State alienation of mineral land while allowing qualified applicants to lease mineral land. The 1943 Constitution stated:

1943 Constitution

Article VIII

Conservation and Utilization of Natural Resources

SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all sources of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant.

The 1973 Constitution, in turn, read:

1973 Constitution

Article XIV

The National Economy and Patrimony of the Nation

SECTION 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential, and resettlement lands of the public domain, natural resources shall not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases, beneficial use may be the measure and the limit of the grant.

While the 1987 Constitution retained the prohibition on the sale of mineral lands, there was a conspicuous absence of the State's previous authority in the 1943 and 1973 Constitutions to administer inalienable natural resources through "license, concession or lease:"^[129]

1987 Constitution

Article XII National Economy and Patrimony

SECTION 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

Under the 1987 Constitution, the State is expected to take on a more hands-on approach or "a more dynamic role in the exploration, development[,] and utilization of the natural resources of the country"^[130] as a consequence of its full control and supervision over natural resources. It exercises control and supervision through the following modes:

1. The State may directly undertake such activities; or
   
2. The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations;
   
3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;
   
4. For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance.^[131] (Emphasis in the original)

Instead of a first-in-time, first-in right approach toward applicants for mining claims and mining rights, the State decides what the most beneficial method is when it comes to exploring, developing, and utilizing minerals. It may choose to either directly undertake mining activities by itself or enter into co-production, joint venture, or production sharing agreements with qualified applicants.

The Court of Appeals erred in relying on a mere obiter dictum as its basis for proclaiming that this jurisdiction adheres to the first-in-time, first-in-­right principle.

In Apex Mining Co.,^[132] this Court did not rule on which between Apex and Balite had the better right or priority over the mining operations within the forest reserve in Monkayo, Davao Del Norte and Cateel, Davao Oriental. Apex Mining Co. stated that the issue had been overtaken by the issuance of Proclamation No. 297 on November 25, 2002, which declared 8,100 hectares in Monkayo, Compostela Valley, including the disputed area, as a mineral reservation. Apex Mining Co. explained that the mining operations within the mineral reservation was a purely executive function over which courts will not interfere.^[133]

In denying the motion for reconsideration for its earlier Decision, Apex Mining Co. reiterated its ruling that it cannot direct the Government to accept either Apex's or Halite's applications for exploration permits. The Executive Department has the prerogative to accept an exploration application or to develop the site on its own, and courts cannot meddle in a purely executive function.^[134]

Nonetheless, Chief Justice Bersamin in his Separate Opinion suggested that in order to prevent further litigation should the Government decide later on to accept an exploration application, this Court should already determine which between Apex and Balite had the priority right to mine the Diwalwal Gold Rush Area.^[135] He noted that under Philippine mining laws, the person who first locates and registers a mining claim, and later mines the area, has a valid and existing right:

Which between Apex and Balite has priority?
On the one hand, Apex rests its claim to priority on the precept of first-in-time, first-in-right, a principle that is explicitly recognized by Section 1 of Presidential Decree (P.D.) No. 99-A, which amended Commonwealth Act (C.A.) No. 137 (Mining Act), which provides:

Whenever there is a conflict between claim owners over a mining claim, whether mineral or non-mineral, the locator of the claim who first registered his claim with the proper mining registrar, notwithstanding any defect in form or technicality, shall have the exclusive right to possess, exploit, explore, develop and operate such mining claim.^[136] (Emphasis in the original)

Despite his noble intention of addressing a potential issue to prevent the parties from going through the whole judicial process again, Chief Justice Bersamin's statement was a separate opinion; thus, it was not and should not be treated as a binding precedent Further, his statement was obiter dictum. He simply expressed an opinion not directly related to the question raised before this Court.^[137]

All told, respondent's right over the contested area failed to hold since the boundaries of its Amended Survey Plan went against the clear provisions of its Operating Contract that only the area it actually occupied will be included in its final operating area. Additionally, the exclusions in petitioner's Agreement only pertained to vested contractual rights, which in this case were the actual areas occupied by respondent's structures in the contested area.

CREATION OF A PROVINCE

The provision in Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared VALID.  Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID

XXXX

Constitution, Article X - Local Government

Section 10.  No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected.

LGC, Title IV, Chapter I

Section 461. Requisites for Creation. - (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a continuous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

EXCEPTIONS TO THE MOOT AND ACADEMIC RULE

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: 
(1) there is a grave violation of the Constitution;
 (2) there is an exceptional character of the situation and the paramount public interest is involved; 
(3) the constitutional issue raised requires formation of controlling principles to guide the bench, the bar, and the public; and
 (4) the case is capable of repetition yet evading review.

SOFT LAW INSTRUMENTS AND EXAMPLES

In addition to the safeguards provided by the Constitution, adequate remedies in the ordinary course of law against abuses and violations of human rights committed by erring public officers are available including the following:

1. R.A. No. 7438 (An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation as Well as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof);

2. R.A. No. 9372 or the Human Security Act of 2007;

3. R.A. No. 9745 or the Anti-Torture Act of 2009; and

4. Writs of Amparo (A.M. No. 07-9-12-SC) and Habeas Data (A.M. No. 08-1-16-SC); and

5. Universal Declaration of Human Rights (UDHR).

In relation to the international human rights principles established under the Universal Declaration of Human Rights (UDHR), the law enforcement officials are also guided by the principles and safeguards declared in the International Covenant on Civil and Political Rights. Soft law instruments of particular relevance to law enforcement include United Nations' (UN) Basic Principles [o]n the Use of Force and Firearms by Law Enforcement Officials (BPUFF),^[83] Code of Conduct for Law Enforcement Officials (CCLEO),^[84] Standard Minimum Rules for the Treatment of Prisoners (SMR),^[85] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles),^[85] and Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims Declaration).^[86] These instruments uphold the principles of legality, proportionality, necessity, and accountability in situations involving the use of force by law enforcers.

SAFEGUARDS OF MARTIAL LAW

In Lagman v. Pimentel III,^[81] the Court discussed these safeguards to wit:

Nevertheless, cognizant of such possibility of abuse, the framers of the 1987 Constitution endeavored to institute a system of checks and balances to limit the President's exercise of the martial law and suspension powers, and to establish safeguards to protect civil liberties. Thus, pursuant to Section 18, Article VII of the 1987 Constitution:

(a) The President may declare martial law or suspend of the privilege of the writ of the privilege of habeas corpus only when there is an invasion or rebellion and public safety requires such declaration or suspension.

(b) The President's proclamation or suspension shall be for a period not exceeding 60 days.

(c) Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to Congress.

(d) The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or suspension.

(e) The President cannot set aside the Congress' revocation of his proclamation or suspension.

(f) The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress' approval.

(g) Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at least a majority of all its Members, can extend the proclamation or suspension for such period as it may determine.

(h) The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and public safety requires it.

(i) The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension or the extension thereof, in an appropriate proceeding filed by any citizen.

(j) The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding.

(k) Martial law does not suspend the operation of the Constitution.

Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must adhere to the principle that civilian authority is supreme over the military and the armed forces is the protector of the people. They must also abide by the State's policy to value the dignity of every human person and guarantee full respect for human rights.

(l) Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function.

(m) The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

(n) Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially charged within three days, otherwise he should be released.^[82]

CONFIRMATION OF APPOINTMENTS

 there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the president may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. 7

Mison also opined:

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence of the section from the same requirement. . . .

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are not otherwise provided for by law and those whom the President may be authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President.

Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Member of the National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.

EN BANC G.R. No. L-6120 June 30, 1953 CIPRIANO P. PRIMICIAS, petitioner, vs. FELICISIMO OCAMPO, as Judge-at-large presiding over Branch C of the Court of First Instance of Manila and EUGENIO ANGELES, as City Fiscal of Manila, representing the PEOPLE OF THE PHILIPPINES,respondents.

EN BANC

G.R. No. L-6120             June 30, 1953

CIPRIANO P. PRIMICIAS, petitioner,
vs.
FELICISIMO OCAMPO, as Judge-at-large presiding over Branch C of the Court of First Instance of Manila and EUGENIO ANGELES, as City Fiscal of Manila, representing the PEOPLE OF THE PHILIPPINES,respondents.

Claro M. Recto for petitioner.
City Fiscal Eugenio Angeles for respondents.

BAUTISTA ANGELO, J.:

This is a petition which seeks to prohibit respondent Judge from proceeding with the trial of two criminal cases which were then pending against petitioner without the assistance of assessors in accordance with the provisions of section 49 of Republic Act No. 409 in relation to section 154 of Act No. 190, and as an auxiliary remedy, to have a writ of preliminary injunction issued so that the trial may be held pending until further orders of this court.

This petition was originally filed with the Court of Appeals, but was later certified to this court on the ground that the main basis of the petition is section 49 of Republic Act No. 409, otherwise known as Revised Charter of the City of Manila, approved on June 18, 1949, and respondents assail the constitutionality of said section in that it contravenes the constitutional provision that the rules of court "shall be uniform for all courts of the same grade . . . .(Section 13, Article VIII of the Constitution.).

Petitioner was charged before the Court of First Instance of Manila with two statutory offenses, namely, (1) with a violation of Commonwealth Act No. 606, which was docketed as criminal case No. 18374, in that he knowingly chartered a vessel of Philippine registry to an alien without the approval of the President of the Philippines and (2) with a violation of section 129 in relation to section 2713 of the Revised Administrative Code, which was docketed as Criminal Case No. 18375, in that he failed to submit to the Collector of Customs the manifests and certain authenticated documents for the vessel "Antarctic" and failed to obtain the necessary clearance from the Bureau of Customs prior to the departure of said vessel for a foreign port.

On April 23, 1952, before the trial of said criminal cases, petitioner filed a motion praying that assessors be appointed to assist the court in considering the questions of fact involved in said cases as authorized by section 49 of Republic Act No. 409, otherwise known as Revised Charter of the City of Manila, which provides that "the aid of assessors in the trial of any civil or criminal action in the Municipal Court, or the Court of First Instance, within the City, may be invoked in the manner provided in the Code of Civil Procedure." This motion was opposed by the City Fiscal who appeared for the People of the Philippines.

On April 28, 1952, the court issued an order denying the motion holding in effect that with the promulgation of the Rules of Court by the Supreme Court, which became effective on July 1, 1940, all rules concerning pleading, practice and procedure in all courts of the Philippines previously existing were not only superseded but expressly repealed, that the Supreme Court, having been vested with the rule-making power, expressly omitted the portions of the Code of Civil Procedure regarding assessors in said Rules of Court, and that the reference to said statute by section 49 of Republic Act No. 409 on the provisions regarding assessors should be deemed as a mere surplusage. Believing that this order is erroneous, petitioner now comes to this court imputing abuse of discretion to the respondent Judge.

The issues now posed by petitioner are:.

I. The right of the petitioner to a trial with the aid of assessors is an absolute substantive right, and the duty of the court to provide assessors is mandatory.

II. The right to trial with the aid of assessors, being a substantive right, cannot be impaired by this court in the exercise of its rule-making power.

III. Section 154 of the Code of Civil Procedure and Section 2477 of the Old Charter of Manila, creating the right to trial with the aid of assessors, are substantive law and were not repealed by Rules of Court.

IV. Granting without admitting that the provisions on assessors of the Code of Civil Procedure and the old Charter of Manila were impliedly repealed, nevertheless, the same provisions were later reenacted by reference in section 49 of the Revised Charter of Manila, which is now the source of the right to trial with the aid of assessors and which refers to the Code of Civil Procedure merely to indicate the procedure for appointing assessors.

V. Section 49 of the Revised Charter of Manila is not invalid class legislation and does not violate the constitutional provision that the rules of pleading, practice and procedure 'shall be uniform for all the courts of the same grade.

A brief summary of the historical background of the legislation regarding trial with the aid of assessors in the Philippines may be of help in the determination of the issues posed by petitioner. The first provision which allowed trial with the aid of assessors in civil cases in inferior courts and Courts of First Instance is contained in Act No. 190 of the Philippine Commission, otherwise known as the Code of Civil Procedure, which took effect on October 1, 1901 (Sections 58-62; 154-161). Almost simultaneously, or on October 17, 1901, the trial with the aid of assessors both in civil and criminal cases was allowed in the Manila courts upon the enactment of Act No. 267, amending Act No. 183, the original Charter of Manila. In 1914, the trial by assessors was allowed in criminal cases in the courts of first instance in the provinces with the enactment of Act No. 2369. And in 1915, Act No. 2520 was passed extending the same trial by assessors to the courts of first instance and justice of the peace courts in the Department of Mindanao and Sulu.

In connection with the use of assessors in Manila, section 44 of Act No. 183, the original Charter of Manila, as amended by section 13 of Act No. 267, was reenacted as section 2449 of the Administrative Code 1916, Act No. 2657. Section 2449 of the Administrative Code of 1916 became section 2477 of Act No. 2711, otherwise known as the Revised Administrative Code of 1917. And section 2477 in turn became section 49 of the Republic Act No. 409, which is the present Charter of the City of Manila. This section 49 is the law now invoked by petitioner in support of his claim to a trial with the aid of assessors in the two criminal cases now pending against him. Its pertinent provisions are quoted hereunder for ready reference:.

SEC. 49. Assessors in the courts in the city. — The aid of assessors in the trial of any civil or criminal action in the municipal court, or the Court of First Instance, within the city, may be invoked in the manner provided in the Code of Civil Procedure. It shall be the duty of the Municipal Board to prepare one list of the names of twenty-five residents of the City best fitted by education, natural ability and reputation for probity to sit as assessors in the trial of actions in the municipal court and a like list of persons to sit as assessors in the trial of the action in the Court of First Instance. The Board may at any time strike any name from the list so prepared, by reason of the death, permanent disability, or unfitness of the person named; and in case names are so stricken out, other names shall be added in their place, to be selected as in this section provided. Parties desiring to avail themselves of the use of assessors in the municipal or Court of First Instance shall proceed as provided for by law or rules of court; and the method of summoning assessors, enforcing their attendance, excusing them from attendance, their compensation, oath duties and effect of dissent from the opinion of the judges shall be as provided in those laws or rules.

A careful analysis of the above provisions is interesting. Their most salient features are: The aid of assessors in the trial of any civil or criminal action in the Municipal Court or the Court of First Instance may be invoked in the manner provided in the Code of Civil Procedure. The parties desiring to avail themselves of the use of assessors "shall proceed as provided for by law or rules of court", and "the method of summoning assessors, enforcing their attendance, excusing them from attendance, their compensation, oath, duties, and effect of the dissent from the opinion of the judge shall be as provided in those laws or rules." If we are to be guided merely by these provisions, the right to trial with the aid of assessor would seem to be beyond dispute. These provisions are simple and clear and appear to be mandatory. But where the difficulty arises is in their relation or bearing on the directive of the Constitution which provides that "the existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared rules of courts subject to the power of the Supreme Court to alter and modify the same." Pursuant to this rule-making power, the Supreme Court promulgated the present Rules of Court, which became effective on July 1, 1940, but because it failed to incorporate therein the provisions of the Code of Civil Procedure on assessors, respondents now contend that the right to trial with the aid of assessors, with all its concomitant provisions, cannot now be invoked because, being procedural in nature, the same must be deemed to have been impliedly eliminated.

This claim would be correct if we were to hold that the right to trial with the aid of assessors is not substantive but procedural or adjective in nature. If it were merely procedural, not having been incorporated in the Rules of Court, the logical conclusion is that the rule- making power has deemed wise to eliminate it. But no such presumption, nor conclusion, can be drawn for the reason that the right to a trial by assessors is substantive in the sense that it must created and defined by express enactment as opposed to a mere remedy devised to enforce such right or obtain redress therefor. "Rules of procedure should be distinguished from substantive law. A substantive law creates, defines or regulates rights concerning life, liberty or property, or the powers of agencies or instrumentalities for the administration of public affairs, whereas rules of procedure are provisions prescribing the method by which substantive rights may be enforced in courts of justice." (Moran, Comments on the Rules of Court, Vol. I, 1952 ed., p.4.)

In Bustos vs. Lucero,^* (46 Off. Gaz., January Supp., pp. 445, 448), this Court cited with approval the following definitions of substantive law:

Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights in a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J. 980.)

Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the right and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtain redress for their invasions (36 C.J. 27; 52 C.J.S. 1026).

The trial with the aid of assessors as granted by section 154 of the Code of Civil Procedure and section 2477 of the old Charter of Manila are parts of substantive law and as such are not embraced by the rule-making power of the Supreme Court. This is so because in said section 154 this matter is referred to as a right given by law to a party litigant. Section 2477 of the Administrative Code of 1917 is couched is such a manner that a similar right is implied when invoked by a party litigant. It says that the aid may be invoked in the manner provided in the Code of Civil Procedure. And this right has been declared absolute and substantial by this Court in several cases where the aid of assessors had been invoked (Berbari vs. Concepcion, et al., 40 Phil., 320; Colegio de San Jose vs. Sison, 54 Phil., 344.) Thus, it was there said that these provisions "necessarily lead to the conclusion that the intervention of the assessors is not an empty formality which may be disregarded without violating either the letter or the spirit of the law. It is another security given by the law to the litigants, and as such, it is a substantial right of which they cannot be deprived without vitiating all the proceedings. Were we to agree that for one reason or another the trial by assessors may be done away with, the same line of reasoning would force us to admit that the parties litigant may be deprived of their right to be represented by counsel, to appear and be present at the hearings, and so on, to the extent of omitting the trial in a civil case, and thus set at naught the essential rights granted by the law to the parties, with consequent nullity of the proceedings." (Colegio de San Jose vs. Sison, 54 Phil., 344, 349.)

Being substantive in nature, it is not difficult to see why the provisions concerning trial by assessors embodied in the Code of Civil Procedure have not been incorporated by the Supreme Court in the present Rules of Court. To have done so, it would have been a travesty of its rule-making power which, by direct mandate of the Constitution, is limited to matters referring to pleading, practice and procedure. The application that the respondents draw from the failure to incorporate these provisions in the present Rules of Court to the effect that the intention was to eliminate them or repeal them all together cannot, therefore, stand in the light of the observations and authorities we have above adverted to.

There is a point in the claim that the provisions concerning trial by assessors embodied in the Code of Civil Procedure are not wholly substantive but portions thereof are remedial such as those which refer to the method of summoning assessors, enforcing their attendance, excusing them from attendance, their compensation, oath, duties and effect of dissent from the opinion of the judge, as to which no cogent reason is seen for their non-incorporation if the intent is not to eliminate them from the Rules of Court. This is true; but it is likewise true that because said remedial provisions are inextricably interwoven with the substantive part, it must have been deemed wise and proper to leave them as they were for reasons of coordination and expediency, it being a truism that the one cannot be detached from the other. Ubi jus ibi remedium. Remedial measures are but implementary in character and they must be appended to the portion of the law to which they belong. Mention should be made here that not all of the provisions appearing in the Code of Civil Procedure are remedial in nature, such as those pertaining to prescription, the requisites for making a will, and the succession of the estate of an adopted child, which are admittedly substantive in character and for that reason were not incorporated in the Rules of Court. To this group belong the provisions under consideration.

Granting arguendo that the provisions on assessors of the Code of Civil Procedure and even in the old Charter of Manila are purely remedial in nature and because of the failure to incorporate them in the Rules of Court they are deemed to have been impliedly repealed as claimed by respondents, we are of the opinion that they can still be invoked by a litigant upon the theory that they had been reaffirmed and reenacted by Republic Act No. 409, which was approved in 1949, or nine years after the Rules of Court became effective. As already stated, section 49 of said Act states that the aid of assessors may be invoked in the manner provided in the Code of Civil Procedure. It likewise states that the parties desiring to avail themselves for the use of assessors shall proceed as provided for by law. The mention made of the Code of Civil Procedure in said section indicates in itself a re-enactment or incorporation by reference of the provisions concerning assessors contained in said law. Congress, whose members were mostly lawyers, must be presumed to know that at the time said Act was approved the Rules of Court had already been promulgated without incorporating therein the provisions concerning the aid to assessors, and fully cognizant of this situation, and not desiring to omit this right granted to a litigant, they must have deemed it wise and proper to re-enact them by reference in said section 49. This Congress can do, for, while our Constitution has given the power to adopt rules of procedure to the Supreme Court, such grant did not preclude Congress from enacting any procedural law or altering, amending, or supplementing any of the rules that may be promulgated by the Supreme Court (Section 13, Article VIII, Philippine Constitution).

The practice of making such reference has long been sanctioned. Our Congress did this not only in connection with courts in the City of Manila. It also did it in connection with courts in Quezon City (Republic Act No. 537). Statutes which refer to other statutes and make them applicable to the subject for legislation are called "reference statutes". These statutes are frequently used "to avoid encumbering the statute books by unnecessary repetition, and they have frequently been recognized as an approval method of legislation, in the absence of constitutional restrictions." [50 Am. Jur. 57; Gruen vs. Tax Commission, 211 P. (2d) (1949) 651, 666.].

Again, it has been held that "The adoption of an earlier statute by reference makes it as much as a part of the latter act as though it had been incorporated at full length. This is true of a legislative act which refers to another act for the procedure to be taken." (50 Am. Jur. 58.) The reference in Republic Act No. 409 to the provisions on assessors must be deemed, therefore, to have incorporated therein the pertinent provisions on the matter contained in the Code of Civil Procedure in much the same manner as if the whole provisions had been reproduced. Consistent with this theory, we cannot but hold that the observations made by respondents to the effect that the reference made to said provisions is section 49 is a mere surplusage, or was due to a mere oversight, has no legal basis, as such innuendo would be tantamount to imputing lack of foresight, if not brazen negligence, to our legislative body.

It is finally contended that section 49 of Republic Act No. 409 is unconstitutional because it violates the constitutional provisions that procedural rules "shall be uniform for all courts of the same grade" and, therefore, it is a class legislation. This contention cannot be entertained: firstly, because it is raised for the first time in this instance, a procedural defect which would bar any further discussion on the matter following well-known precedents¹ and, secondly, because it is not correct that at present only in Manila trial with the aid of assessors may be invoked if we will sustain the theory that the promulgation of the Rules of Court did not have the effect of repealing the provisions on assessors embodied in the Code of Civil Procedure.

The contention of respondents — we reckon — is predicated on the assumption that the provisions on assessors of the Code of Civil Procedure had been impliedly repealed. Such is not the case. We have already pointed out that the basic provisions on the matter partake of the nature of substantive law and as such they were left intact by the Supreme Court. The corollary to this conclusion is that this remedy may be invoked out only in Manila but in all other places where it existed prior to the promulgation of the Rules of Court. This is true in civil cases. With regard to criminal cases, we have already said that the same remedy may be invoked in the cities of Cebu, Iloilo and Quezon, with the particularity that their charters make express reference, either directly or indirectly, to the provisions of the code of Civil Procedure. With this historical background, the claim that under the theory we have entertained the trial with the aid of assessors can only be invoked in the City of Manila is certainly without merit.

In view of the foregoing, we hold that the provisions on assessors embodied in the Code of Civil Procedure are still in force and that the same may still be invoked in the light of the provisions of section 49 of the Republic Act No. 409. It is therefore our opinion that the respondent Judge acted with abuse of discretion in denying petitioner his right to the aid of assessors in the trial of the two criminal cases now pending in the Court of First Instance of Manila.

Wherefore, petition is hereby granted, without pronouncement as to costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

REYES, J., concurring:

In view of section 49 of Republic Act No. 409, approved June 18, 1949, authorizing the use of assessors in the trial of civil and criminal cases in the city of Manila, I concur in the result.

Footnotes

^* 81 Phil., 640.

¹ De Leon vs. Santiago Syjuco, Inc. 90 Phil. 311; McGirr vs. Hamilton and Abreau, 30 Phil. 563; Yangco vs. Board of Public Utility Commissioners, 36 Phil. 116; Walter E. Olsen & Co. vs. Aldanese and Trinidad, 43 Phil. 259; Macondray & Co. vs. Benito and Ocampo, 62 Phil. 137; Go Chiong vs. Dinglasan, 45 Off. Gaz., 703, 79 Phil. 122; Willoughby, Vol. 1, p. 19; People vs. Vera, 65 Phil. 56.

SECOND DIVISION G.R. No. 165922 BAGUIO MARKET VENDORS MULTI-PURPOSE COOPERATIVE (BAMARVEMPCO), represented by RECTO INSO, Operations Manager, Petitioner, vs. HON. ILUMINADA CABATO-CORTES, Executive Judge, Regional Trial Court, Baguio City, Respondent.

Until the 1987 Constitution took effect, our two previous constitutions textualized a power sharing scheme between the legislature and this Court in the enactment of judicial rules. Thus, both the 1935¹³ and the 1973¹⁴ Constitutions vested on the Supreme Court the "power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law." However, these constitutions also granted to the legislature the concurrent power to "repeal, alter or supplement" such rules.¹⁵

The 1987 Constitution textually altered the power-sharing scheme under the previous charters by deleting in Section 5(5) of Article VIII Congress’ subsidiary and corrective power.¹⁶ This glaring and fundamental omission led the Court to observe in Echegaray v. Secretary of Justice¹⁷ that this Court’s power to promulgate judicial rules "is no longer shared by this Court with Congress":

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court [under] Section 5(5), Article VIII¹⁸ x x x .

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. x x x x 

Any lingering doubt on the import of the textual evolution of Section 5(5) should be put to rest with our recent En Banc ruling denying a request by the Government Service Insurance System (GSIS) for exemption from payment of legal fees based on Section 39 of its Charter, Republic Act No. 8291, exempting GSIS from "all taxes, assessments, fees, charges or dues of all kinds."¹⁹ Reaffirming Echegaray’s construction of Section 5(5), the Court described its exclusive power to promulgate rules on pleading, practice and procedure as "one of the safeguards of this Court’s institutional independence":

[T]he payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards of this Court’s institutional independence, the power to promulgate rules of pleading, practice and procedure is now the Court’s exclusive domain.²⁰ x x x (Emphasis supplied)

IBP MEMBERSHIP; DISBARMENT

The second issue posed by the respondent is that the provision of the Court Rule requiring payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court, under its constitutional power and duty to promulgate rules concerning the admission to the practice of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution) — which power the respondent acknowledges — from requiring members of a privileged class, such as lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure, designed to raise funds for carrying out the objectives and purposes of integration. 11

3. The respondent further argues that the enforcement of the penalty provisions would amount to a deprivation of property without due process and hence infringes on one of his constitutional rights. Whether the practice of law is a property right, in the sense of its being one that entitles the holder of a license to practice a profession, we do not here pause to consider at length, as it clear that under the police power of the State, and under the necessary powers granted to the Court to perpetuate its existence, the respondent's right to practise law before the courts of this country should be and is a matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure is recognize, then a penalty designed to enforce its payment, which penalty may be avoided altogether by payment, is not void as unreasonable or arbitrary. 12

But we must here emphasize that the practice of law is not a property right but a mere privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance with the lawyer's public responsibilities.

XXX

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court — appropriate, indeed necessary, to the proper administration of justice ... the argument that this is an arbitrary power which the court is arrogating to itself or accepting from the legislative likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the Ideals and traditions of an honorable profession and to protect the public from overreaching and fraud. The very burden of the duty is itself a guaranty that the power will not be misused or prostituted. ..."

The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in the Court.

We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-Laws of the Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from the Roll of Attorneys of the Court.

IS EXECUTIVE POWER DEFINED UNDER THE 1987 CONSTITUTION? it is not defined, but these powers are merely enumerated.

"As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23]."

x x x 
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated,

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met with only passing interest if not outright indifference from the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund that feeble threat has died with him. As the government stresses, he has been reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it forever.

As stressed in the report, it behooves every prospective appointee to the judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specially required of appointees to the judiciary by Article VIII, Sec. 7(3) of the Constitution. The fact alone of this concealment of the two criminal cases against him is clear proof of his lack of said qualifications and renders him unworthy to sit as judge. By his concealment of his previous dismissal from the public service, which the Judicial and Bar Council would have taken into consideration in acting on his application, Judge Cube committed an act of dishonesty that rendered him unfit to be appointed to, and to remain now in, the Judiciary he hastarnished with his falsehood. WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of Manila is DISMISSED with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits. This decision is immediately executory.

EN BANC

A.M. No. 93-7-428-MTC October 13, 1993

RE: INQUIRY ON THE APPOINTMENT OF JUDGE ENRIQUE A. CUBE

PER CURIAM:

Judge Enrique A. Cube was on May 31, 1993 appointed Presiding Judge of the Metropolitan Trial Court, Branch 22, Manila. Subsequently, information was received by the Judicial and Bar Council that he had previously been dismissed as Assistant Fiscal of Pasay City. The matter was referred to the Office of the Court Administrator, which immediately conducted an inquiry.

In a Memorandum dated July 7, 1993, Head Executive Assistant Ronaldo C. Olalia of the Department of Justice informed the Judicial and Bar Council that, per their records, an administrative case for gross misconduct and dereliction of duty was filed against Fiscal Enrique A. Cube by Secretary of Justice Vicente Abad Santos for failure to prosecute a criminal case which led to its dismissal with prejudice. Cube was found guilty as charged. On September 27, 1972, the President of the Philippines signed Administrative Order No. 341 "Removing Mr. Enrique A. Cube from Office as Assistant City Fiscal of Pasay City."

Cube applied for appointment to the Judiciary sometime in 1992. In the Personal Data Sheet he was required to accomplish, one of the questions asked (Question No. 25) was: "Have you ever been retired, dismissed, forced to resign from any employment for reason other than lack of funds or dropped from the rolls?" His answer was: "Optional under RA 1145 effective 1996."

RA 1145 is entitled "An Act Creating the Philippine Coconut Administration" and does not deal with retirement, optional or otherwise. Cube's Service Record made no mention of his having been employed in this agency.

Required to comment, Judge Cube gave the following explanation:

Without discussing the merits of the Resolution of Secretary Vicente Abad Santos in recommending my removal, the same being moot and academic, it is noteworthy to mention that the action of the President done six (6) days after the declaration of Martial Law on September 27, 1972, was removal WITHOUT PREJUDICE, which legally and technically mean that I am still qualified to hold any position in the government for the service of my country which was realized when I have returned to the government service appointed as Chief of Office of the Community Relations Office and later, as Director of Civil Security and then as Secretary to the Mayor in Local City Government, which offices I have handled with sincerity and dedication, until my optional retirement, when I then decided to humbly join the judiciary.

The Curriculum Vitae which I submitted to the Judicial and Bar Council had been done with honesty and clear conscience specially so on questions number 24, "Do you have any pending administrative or criminal case?" Precisely, I answered "No" because, at the time I filed my application with the Judicial and Bar Council, there was no ongoing Administrative or Criminal Case filed against me in any Administrative Body or Court of the Philippines. Administrative Order No. 341 issued by the President Marcos has long been terminated (21 years ago) hence, it cannot be construed as pending.

On question No. 25, "Have you ever been retired/dismissed or forced to resign for reason other than lack of funds?" My answer was "Optional Under RA 1145 effective 1996," because actually, I have filed my optional retirement as a government employee holding the position of Secretary to the Mayor which was approved by the City Local Government as well as the GSIS. To this incident, I was referring to all my government services when I returned to service of the government again. Hence, I do believe that with these answers, I have not committed any dishonesty (gross or otherwise) both on status of having omitted any Information or having committed any act of misleading the forum concerned relative to my application to be a member of the Bench.

Likewise, it is my humble opinion that there would be an inconsistency and absence of logic in my answer considering the chronological arrangement propounded in the question as follows: "Have you ever been retired, dismissed or forced to resign . . .?" Thus, I answered in good faith and without malice aforethought, that I optionally retired from my public service under RA 1145 which was approved by the government.

Moreover, I honestly believe that I did not commit any gross dishonesty in filling-up my application form because, first, my removal from office was WITHOUT PREJUDICE which I legally mean that I can still be recalled by the government to render public service, second, I was in fact RECALLED AND APPOINTED to sensitive positions in the government prior to this appointment and lastly, I was allowed by the same government to avail the Optional Retirement under RA 1145.

The undersigned in his sixty-two (62) years of existence, has never committed any act of dishonesty in any of his application to any of his application when he returned to serve the government,more so, when he filed his application to serve the Judiciary, maintaining his philosophy that the stature of a judicial member or member of the Bench is one who ought to be with clear and clean conscience. If the Supreme Court would take my answers to such questions as deliberated by the Judicial and Bar Council to be one of Gross Dishonesty, then I would say that when I gave those answers in my application for appointment to the Bench, I answered them in good faith and my conscience is clean and the answers given thereto, are honestly true.

I repeat, that the action of the President then (that was 21 years ago) up to my optional retirement which was in 1989, was that my removal was WITHOUT PREJUDICE, and I returned to the service of the government, continuously, dedicatedly and conscientiously served the same, honestly, up to the time I filed my Optional Retirement.

When I filed my application with the Judicial and Bar Council, I have never had any pending administrative criminal case. And that I honestly believe that since I have optionally retired myself from the government service with clean name, the other two last words of Question No. 25, ". . . , dismissed or forced to resign," is NOT applicable to me as I was granted optional retirement in 1989. It is a fundamental policy of the government that dismissed or forced to resign employees are NOT QUALIFIED or ENTITLED to RETIRE.

With this COMMENT, I leave my fate to the Honorable and Justiciable Justices of Supreme Court.

August 25, 1993, Manila.

The Comment is a clever evasion but it is not clever enough. It does not satisfactorily explain why Judge Cube did not disclose the relevant fact that he had been dismissed for gross misconduct in the discharge of his duties as Assistant Fiscal of Pasay City. That fact was deliberately suppressed. Judge Cube would now equate his dismissal with retirement and give both modes of separation an innocent character. It is a wonder that he even hoped to convince this Court of such a feeble if not absurd argument.

No amount of circumlocution can wash away the fact that Judge Cube was dismissed from the public service and that he purposely did not disclose this dismissal when he accomplished the bio-data form required by the Judicial and Bar Council. By such non-disclosure, the Council was led to believe, on the strength of his (mis)representations, that he had a clean record and was not disqualified from appointment to the Judiciary.

The circumstance that his dismissal was without prejudice is not material, and neither is his subsequent appointment to a municipal position. What is his non-disclosure (or concealment) of the fact that on September 27, 1972, he was removed as Assistant City Fiscal of Pasay City by the President of the Philippines. Judge Cube did not retire, as he declared in his Personal Data Sheet. His separation in 1972 was not that blameless. He was removed after investigation and found guilty of gross misconduct and dereliction of duty in the prosecution of a smuggling case. He cannot now brush his removal aside as if it had never existed at all. It is a blot on his record that has spread even more because of his concealment of it.

In Court Administrator vs. Estacion, 181 SCRA 33, the respondent judge was found to have withheld from the Court the information that he was, at the time of his application for appointment to the Regional Trial Court of Dumaguete City, facing criminal charges of homicide and attempted homicide. For suppression of this vital fact, he was dismissed by this Court, which observed:

As stressed in the report, it behooves every prospective appointee to the judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specially required of appointees to the judiciary by Article VIII, Sec. 7(3) of the Constitution. The fact alone of this concealment of the two criminal cases against him is clear proof of his lack of said qualifications and renders him unworthy to sit as judge.

By his concealment of his previous dismissal from the public service, which the Judicial and Bar Council would have taken into consideration in acting on his application, Judge Cube committed an act of dishonesty that rendered him unfit to be appointed to, and to remain now in, the Judiciary he hastarnished with his falsehood.

WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of Manila is DISMISSED with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits. This decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.

Padilla and Griño-Aquino, JJ., concur.