Dissension in the Court: April 2010

The following are selected decisions promulgated by the High Court in April 2010 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.  In this episode, we have three main events—the last of which was an awaited rematch—that coincidentally, and quite timely, all somehow relate to elections.

Once again, let’s get ready to rumble.

1.              Legislative Redistricting (Perez vs. Carpio and Carpio-Morales)

The provisions of the Constitution that are at issue in Aquino III (aka, “Noynoy” or the uncle of Baby James) and Robredo vs. Comelec are:


The Legislative Department

x     x     x

SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. (underscoring supplied)

Prior to the enactment of Republic Act 9716 (RA 9716), Camarines Sur was divided into 4 legislative districts with each district having an estimated population of more than 250,000 people.  RA 9716 reconfigured the legislative districts in Camarines Sur so that there became 5 legislative districts with one of such districts having a population of less than 250,000.

The issue then was whether RA 9716 violated the Constitution by creating a legislative district within the Province of Camarines Sur that had a population of less than 250,000 and therefore transgressed the principle of proportional representation.

Justice Jose Perez, in writing for the majority, declared that there is no provision in the Constitution that fixes a 250,000 minimum population requirement that must compose a legislative district.  While Section 5(3) of Article VI of the Constitution requires a minimum population of 250,000 in order for a city to be entitled to a representative, that same requirement does not apply to a province.

Justice Perez noted that the prior case of Mariano, Jr. v. Comelec supported this view considering that in that case, the addition of another legislative district in Makati was upheld even if, based on the latest population survey for Makati, one of the two resulting legislative districts for Makati would have a population of less than 250,000.

In addition, the records of the Constitutional Commission contained transcripts of deliberations on the districting of Palawan where the 250,000 minimum population requirement was disregarded and was based on other factors instead.  The districting of Benguet and Baguio too, per the records, did not take population into consideration as a factor.

Justice Perez then pointed to the 2008 case of Bagabuyo vs. Comelec that states that “[u]ndeniably, these figures show a disparity in the population sizes of the districts.  The Constitution, however, does not require exactitude or rigid equality as a standard in gauging equality of representation…

In closing, he cautioned that it should not be said that population is not an important consideration in the matter of districting.  However, it is not the only factor to be considered.

The majority conclusion: RA 9716 is a valid law.

Justice Antonio Carpio, in his dissent, averred that

“[t]he majority opinion allows, for the first time under the 1987 Constitution, voters in a legislative district created by Congress to send one representative to Congress even if the district has a population of only 176,383. In sharp contrast, all other legislative districts created by Congress send one representative each because they all meet the minimum population requirement of 250,000.”

His dissent pointed to Section 5(4) of Article VI of the Constitution and asserted that in reapportioning legislative districts, Congress must use as its basis the standards provided in Section 5. These constitutional standards are limited to (a) population, and (b) territory.

On the population standard, Justice Carpio enumerated the following as the necessary elements: (1) proportional representation; (2) minimum population of 250,000 per legislative district; (3) progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in apportionment of legislative districts “in provinces, cities, and the Metropolitan Manila area.

And on territory, the standards are that a legislative district must be ”as far as practicable, contiguous, compact and adjacent.

According to Justice Carpio, the creation of a new legislative district in Camarines Sur which has a population of less than 250,000 violates the directive of the Constitution that the reapportionment of legislative districts must based on the standards set out in Section 5.

With respect to the Mariano case, Justice Carpio observed that Congress did not actually deviate from the 250,000 minimum population rule as the population of Makati actually stood at 508,174 or sufficient to accommodate 2 legislative districts having a population of at least 250,000 each.  He also pointed out that in the Bagabuyo case cited by the majority, the legislative districts created actually each had populations greater than 250,000.

Blood lines bonded together as the other dissent was provided by Justice Conchita Carpio-Morales.  She took the view that Sections 5(3) of Article VI of the Constitution should be read together with Section 5(1) of the same Article in light of the constitutional requirements of population and contiguity.

Justice Carpio-Morales made the same observations as Justice Carpio that the Mariano and Bagabuyo cases did not dispense with the minimum population requirement.  She then made the further observation that the manner by which RA 9716 reallocated the districts in Camarines Sur, which resulted in one legislative district having a very significant drop in population, violates uniform and progressive ratio requirement of the Constitution.

Her dissent concluded with emphasizing that the sole standards that must be used in legislative districting are population and contiguity, and that the danger in allowing “other factors,”

aside from population, to be considered in the composition of additional districts (thereby adding other requisites despite the Constitution’s clear limitation to population and contiguity), is that it “effectively opens the floodgates to opportunistic lawmakers to reconfigure their own principalia and bantam districts. Leaving open Section 5 of Article VI to arbitrary factors, such as economic, political, socio-cultural, racial and even religious ones, is an invitation to a free-for-all.

(Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo vs. Commission on Elections; G.R. No. 189793,April 7, 2010.  See dissenting opinion of Justice Carpio  here and the dissenting opinion of Justice Carpio-Morales here.)

(Author’s note: this author tends to agree that the reapportionment of legislative districts must observe the standards in Section 5, Article VI of the Constitution which includes that it be: “in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio.”  Those twin requirements suggest to this author that population is not something that Congress is allowed to disregard.  He scores this one for the dissenters.)

2.              The Party List System (Del Castillo vs. Corona)

Ang Ladlad LGBT Party vs. Comelec.  Yet again, the Comelec is the respondent.

As a background, the Comelec denied the application of Ang Ladlad LGBT Party for accreditation as a party list organization on moral grounds.  In particular, the Comelec concluded that Ladlad tolerated immorality in violation of the Revised Penal Code, the Civil Code, the Bible and the Koran. The Comelec Chairman, in his separate opinion, added that under the party list law (RA 7941), the purpose of the party-list system is to enable citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.  The Chairman noted that :

If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nation’s – only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that.    (underscoring supplied)

Justice Mariano Del Castillo took up the cudgels for the majority and started off by enunciating that in accordance with the Court’s earlier ruling in Ang Bagong Bayani vs. Comelec, the list of sectors enumerated in the Constitution and RA 7941 is not an exclusive list.  Sectors that are not specifically named but comply with the requirements of the Constitution and RA 7941 may be accredited as a party list organization.

The majority held that there was a grave violation of the Constitution’s non-establishment clause when the Comelec used the Bible and the Koran as its basis to deny Ladlad’s application.  Neither was it proper for the Comelec to exclude Ladlad on the ground that homosexuality and homosexual conduct transgresses upon generally accepted public morals.  Justice Del Castillo noted that the Philippines has not seen fit to criminalize homosexual conduct and moreover, the Comelec failed to identify any specific overt immoral act performed by Ladlad.  The summation provided by Justice Del Castillo reads:

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause.

The lone dissenting voice was Justice Renato Corona’s.

Justice Corona espoused the view that:

[w]ith regard to the matter of what qualifies as marginalized and underrepresented sectors under the party-list system, Section 5(2), Article VI of the Constitution mentions “the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” On the other hand, the law speaks of “labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

Surely, the enumeration of sectors considered as marginalized and underrepresented in the fundamental law and in the implementing law (RA 7941) cannot be without significance. To ignore them is to disregard the texts of the Constitution and of RA 7941. For, indeed, the very first of Ang Bagong Bayani-OFW Labor Party’s eight guidelines for screening party-list participants is this: the parties, sectors or organizations “must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941.

Thus, on the basis of the Constitution, RA 7941 and Ang Bagong Bayani, Justice Corona summed up the following as the significant factors in determining what are the marginalized and underrepresented sectors contemplated under the party list system:

(a) they must be among, or closely connected with or similar to, the sectors mentioned in Section 5 of RA 7941;

(b) they must be sectors whose interests are traditionally and historically regarded as vital to the national interest but they have long been relegated to the fringes of society and deprived of an opportunity to participate in the formulation of national policy;

(c) the vinculum that will establish the close connection with or similarity of sectors to those expressly mentioned in Section 5 of RA 7941 is a constitutional provision specifically recognizing the special significance of the said sectors (other than people’s organizations, unless such people’s organizations represent sectors mentioned in Section 5 of RA 7941) to the advancement of the national interest and

(d) while lacking in well-defined political constituencies, they must have regional or national presence to ensure that their interests and agenda will be beneficial not only to their respective sectors but, more importantly, to the nation as a whole.

The dissenter did not believe that Ladlad met the above-stated requirements.

Justice Corona called upon the Court to exercise judicial restraint by strictly adhering to, rather than expanding, legislative policy on the matter of marginalized sectors as expressed in the enumeration in Section 5 of RA 7941 and expresses that they cannot amend RA 7941 in the guise of interpretation.  Said Justice Corona:

[t]he Constitution expressly and exclusively vests the authority to determine “such other [marginalized] sectors” qualified to participate in the party-list system to Congress. Thus, until and unless Congress amends the law to include the LGBT and other sectors in the party-list system, deference to Congress’ determination on the matter is proper.

(Ang Ladlad LGBT Party vs. Commission on Elections, G.R. No. 190582, April 8, 2010.  See dissenting opinion here.)

(Author’s note: this author confesses to having particular difficulty analyzing this decision primarily because he does not believe that the party list system makes much sense in the first place.  That said, this author does not believe the Comelec was correct to deny the Ladlad application on the basis of unestablished immorality.  In addition, while he may harbor some personal disquiet as to branding Ladlad (or the genre of persons it represents) as marginalized, if the sector of “women” is expressly included in the Constitution, there seems to be little space to argue that Ladlad should not likewise qualify as a party list organization.  This author will have to concur with the conclusions of the majority.)

3.              The Ban on Midnight Appointments (Bersamin vs. Carpio-Morales)

In this rematch, Justice Lucas Bersamin started off, as he did in the previous bout, by summarizing the positions espoused by all the parties that filed motions for reconsideration as well as the comments of various parties to those motions for reconsideration.  Once done, Justice Bersamin swiftly dismissed the same with the final punch: “We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and argued, not being new, have all been resolved by the decision of March 17, 2010.

Even so, Justice Bersamin took the opportunity to discuss a few matters for clarification and emphasis.

Firstly, the majority addressed the matter of their having abandoned In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively.  Justice Bersamin straightforwardly stressed that the Supreme Court, as the highest court of the land, may be guided but is not controlled by precedent.  The Constitution itself recognizes the innate authority of the Court en banc to modify or reverse a doctrine or principle of law laid down in any decision rendered en banc or in division.

Secondly, Justice Bersamin took issue with the insistence by some intervenors that the Constitutional Commission extended to the Judiciary the ban on presidential appointments during the restricted period set out in the Constitution.  He pointed out that the excerpt from the deliberations of the Constitutional Commission quoted by Justice Conchita Carpio-Morales in her previous dissent was a discussion not on the matter of midnight appointments, but on another provision of the Constitution dealing with nepotism in Presidential appointments.

Finally, the ponente chided the movants on their claim that the majority did not observe principles of statutory construction.  Justice Bersamin declared that the movants themselves are the ones that are contravening their avowed reliance on principles of statutory construction.  He reiterated their March 17, 2010 ruling that:

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court. (underscoring supplied)

And then concluded with the following statement: “We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the purposes of any quarter.

Justice Conchita Carpio-Morales’s dissenting opinion on the majority’s ruling that the midnight appointments ban did not extend to appointments to the judiciary was brief.  The three points she raised were the following:

1.                 the majority decision disregarded established canons of statutory construction, placing premium on the arrangement and ordering of provisions which, she says, is one of the weakest tools of construction;

2.                 the majority reversed Valenzuela because it did not firmly rest on yet did not offer to cite a material Constitutional Commission deliberation; and

3.                 the most legally feasible interpretation (in the limited cases of temporary physical or legal impossibility of compliance) is to consider the appointments ban or other substantial obstacle as a temporary impossibility which excuses or releases the constitutional obligation of the President for the duration of the ban or obstacle.

Justice Morales added in her opinion that the ruling requiring the Judicial and Bar Council (JBC) to submit their shortlist to the President before the vacancy occurs (i) runs counter to Constitutional Commission deliberations that show that the 90 day period within which the President must fill a vacancy at the Supreme Court was allotted for both the nomination by the JBC and the appointment by the President, and (ii) may lead to preposterous results as in the case where a vacancy occurs as a result of the death of a justice.

As her last word, she added that the fact that there is a 90 day period during which the President may appoint to fill in a vacancy at the Supreme Court rebuts any public policy argument on avoiding a vacuum of even a single day without a duly appointed Chief Justice.

(Arturo M. De Castro vs. Judicial and Bar Council and President Gloria Macapagal-Arroyo, G.R. No. 191002, April 20, 2010.  See dissenting opinion here.)

(Author’s note: as the motions for reconsideration did not raise new arguments, the majority decision as well as the dissenting opinion, in the same light, did not arrive at new conclusions.  Similarly, this author’s scorecard on the whole has likewise not changed.  However, the author notes with much interest the revelation of the majority that the excerpt from the Constitutional Commission deliberations quoted by Justice Carpio-Morales in her previous dissenting opinion actually dealt with discussions on nepotism and not on the midnight appointments ban.  This author would be just as interested to know, as many would likewise probably be, why that dissent made it sound like—at least it did to this author—that the quote pertained to discussions on the midnight appointments ban. [the paragraph immediately prefacing the quoted portion was: “Heeding Aytonas admonition, the Constitutional Commission (ConCom) saw it fit to provide for a comprehensive ban on midnight appointments, finding that the establishment of the JBC is not enough to safeguard or insulate judicial appointments from politicization.  The ConCom deliberations reveal: x x x”])

(Note:  After this article was written, the Supreme Court made publicly available the decision in Philippine Guardians Brotherhood, Inc. (PGBI), etc. vs. Commission on Elections, G.R. No. 190529, April 29, 2010, which contains a dissenting opinion penned by Justice Abad.)