stat con midterm cases

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 79974 December 17, 1987 ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor. D E C I S I O N PADILLA, J.: Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner ofthe Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison’s salaries and emoluments, on the ground that Mison’s appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison’s appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison’s right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit.

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Page 1: Stat Con Midterm Cases

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 79974          December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,

vs.

SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF

CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE

DEPARTMENT OF BUDGET, respondents,

COMMISSION ON APPOINTMENTS, intervenor.

 

D E C I S I O N

PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for

prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of

the Philippines and professors of Constitutional Law, seek to enjoin the respondent

Salvador Mison from performing the functions of the Office of Commissioner ofthe

Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department

of Budget, from effecting disbursements in payment of Mison’s salaries and emoluments, on

the ground that Mison’s appointment as Commissioner of the Bureau of Customs is

unconstitutional by reason of its not having been confirmed by the Commission

on Appointments. The respondents, on the other hand, maintain the constitutionality of

respondent Mison’s appointment without the confirmation of the Commission

on Appointments.

Because of the demands of public interest, including the need for stability in the public

service, the Court resolved to give due course to the petition and decide, setting aside the

finer procedural questions of whether prohibition is the proper remedy to test respondent

Mison’s right to the Office of Commissioner of the Bureau of Customs and of whether the

petitioners have a standing to bring this suit.

By the same token, and for the same purpose, the Court allowed the Commission

on Appointmentsto intervene and file a petition in intervention. Comment was required of

respondents on said petition. The comment was filed, followed by intervenor’s reply thereto.

The parties were also heard in oral argument on 8 December 1987.

Page 2: Stat Con Midterm Cases

This case assumes added significance because, at bottom line, it involves a conflict

between two (2) great departments of government, the Executive and Legislative

Departments. It also occurs early in the life of the 1987 Constitution.

The task of the Court is rendered lighter by the existence of relatively clear provisions in the

Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice

(later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs.

Rodriguez, 1 that:

The fundamental principle of constitutional construction is to give effect to the intent of the

framers of the organic law and of the people adopting it. The intention to which force is to be

given is that which is embodied and expressed in the constitutional provisions themselves.

The Court will thus construe the applicable constitutional provisions, not in accordance with

how the executive or the legislative department may want them construed, but in

accordance with what they say and provide.

Section 16, Article VII of the 1987 Constitution says:

The President shall nominate and, with the consent of the Commission on Appointments,

appoint the heads of the executive departments, ambassadors, other public ministers and

consuls, or 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. He shall also appoint all

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

and those whom he may be authorized by law to appoint. The Congress may, by law, vest

the appointment of other officers lower in rank in the President alone, in the courts, or in the

heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the

Congress, whether voluntary or compulsory, but such appointments shall be effective only

until disapproval by the Commission on Appointments or until the next adjournment of the

Congress.

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, 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 whoseappointments are vested in him in this Constitution; 2

Second, all other officers of the Government whose appointments are not otherwise

provided for by law; 3

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

Page 3: Stat Con Midterm Cases

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the

President alone.

The first group of officers is clearly appointed with the consent of the Commission

on Appointments.Appointments of such officers are initiated by nomination and, if the

nomination is confirmed by the Commission on Appointments, the President appoints. 5

The second, third and fourth groups of officers are the present bone of contention. Should

they be appointed by the President with or without the consent (confirmation) of the

Commission onAppointments? By following the accepted rule in constitutional and statutory

construction that an express enumeration of subjects excludes others not enumerated, it

would follow that only thoseappointments to positions expressly stated in the first group

require the consent (confirmation) of the Commission on Appointments. But we need not

rely solely on this basic rule of constitutional construction. We can refer to historical

background as well as to the records of the 1986 Constitutional Commission to determine,

with more accuracy, if not precision, the intention of the framers of the 1987 Constitution

and the people adopting it, on whether the appointments by the President, under the

second, third and fourth groups, require the consent (confirmation) of the Commission

on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad

Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must be

presumed to have been framed and adopted in the light and understanding of prior and

existing laws and with reference to them. “Courts are bound to presume that the people

adopting a constitution are familiar with the previous and existing laws upon the subjects to

which its provisions relate, and upon which they express their judgment and opinion in its

adoption.” (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that

xxx xxx xxx

(3) The President shall nominate and with the consent of the Commission on Appointments,

shall appoint the heads of the executive departments and bureaus, officers of the army from

the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and

all other officers of the Government whose appointments are not herein otherwise provided

for, and those whom he may be authorized by law to appoint; but the Congress may by law

vest the appointment of inferior officers, in the President alone, in the courts, or in the heads

of departments.

Page 4: Stat Con Midterm Cases

(4) The President shall have the power to make appointments during the recess of the

Congress, but such appointments shall be effective only until disapproval by the

Commission on Appointments or until the next adjournment of the Congress.

xxx xxx xxx

(7) …, and with the consent of the Commission on Appointments, shall appoint

ambassadors, other public ministers and consuls …

Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of bureaus and offices, the officers of the

Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all

other officers of The government whose appointments are not herein otherwise provided

for, and those whom he may be authorized by law to appoint. However, the Batasang

Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive

Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint

inferior officers in their respective offices.

Thus, in the 1935 Constitution, almost all presidential appointments required the consent

(confirmation) of the Commission on Appointments. It is now a sad part of our political

history that the power of confirmation by the Commission on Appointments, under the 1935

Constitution, transformed that commission, many times, into a venue of “horse-trading” and

similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which

it was molded and remolded by successive amendments, placed the absolute power of

appointment in the President with hardly any check on the part of the legislature.

Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973

Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution

and the people adopting it, struck a “middle ground” by requiring the consent (confirmation)

of the Commission on Appointments for the first group of appointments and leaving to the

President, without such confirmation, the appointment of other officers, i.e., those in the

second and third groups as well as those in the fourth group, i.e., officers of lower rank.

The proceedings in the 1986 Constitutional Commission support this conclusion. The

original text of Section 16, Article VII, as proposed by the Committee on the Executive of the

1986 Constitutional Commission, read as follows:

Section 16. The president shall nominate and, with the consent of a Commission on

Appointment, shall appoint the heads of the executive departments and bureaus,

ambassadors, other public ministers and consuls, or officers of the armed forces from the

rank of colonel or naval captain and all other officers of the Government whose

Page 5: Stat Con Midterm Cases

appointments are not otherwise provided for by law, and those whom he may be authorized

by law to appoint. The Congress may by law vest the appointment of inferior officers in the

President alone, in the courts, or in the heads of departments 7 [Emphasis supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935

Constitution. When the frames discussed on the floor of the Commission the proposed text

of Section 16, Article VII, a feeling was manifestly expressed to make the power of the

Commission on Appointments over presidential appointments more limited than that held by

the Commission in the 1935 Constitution. Thus-

Mr. Rama: … May I ask that Commissioner Monsod be recognized

The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair’s indulgence, I just want to take a few minutes of our time to lay

the basis for some of the amendments that I would like to propose to the Committee this

morning.

xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on Appointments

be limited to the department heads, ambassadors, generals and so on but not to the levels

of bureau heads and colonels.

xxx xxx xxx 8 (Emphasis supplied.)

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 9 of the section from the same requirement. The records of the deliberations of the

Constitutional Commission show the following:

MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26

which is to delete the words “and bureaus,” and on line 28 of the same page, to change the

phrase ‘colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last

amendment which is co-authored by Commissioner de Castro is to put a period (.) after the

word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL

ALSO APPOINT, et cetera.

MR. REGALADO: May we have the amendments one by one. The first proposed

amendment is to delete the words “and bureaus” on line 26.

Page 6: Stat Con Midterm Cases

MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the

justification of the proponent for such a deletion?

MR. FOZ: The position of bureau director is actually quite low in the executive department,

and to require further confirmation of presidential appointment of heads of bureaus would

subject them to political influence.

MR. REGALADO: The Commissioner’s proposed amendment by deletion also includes

regional directors as distinguished from merely staff directors, because the regional

directors have quite a plenitude of powers within the regions as distinguished from staff

directors who only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervision of the staff bureau

directors.

xxx xxx xxx

MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner

proposed an amendment to delete ‘and bureaus on Section 16. Who will then appoint the

bureau directors if it is not the President?

MR. FOZ: It is still the President who will appoint them but their appointment shall no longer

be subject to confirmation by the Commission on Appointments.

MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de

Castro?

MR. FOZ: Yes.

MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

xxx xxx xxx

MR. REGALADO: Madam President, the Committee feels that this matter should be

submitted to the body for a vote.

MR. DE CASTRO: Thank you.

MR. REGALADO: We will take the amendments one by one. We will first vote on the

deletion of the phrase ‘and bureaus on line 26, such that appointments of bureau directors

no longer need confirmation by the Commission on Appointment.

Section 16, therefore, would read: ‘The President shall nominate, and with the consent of a

Commission on Appointments, shall appoint the heads of the executive departments,

ambassadors. . . .

Page 7: Stat Con Midterm Cases

THE PRESIDENT: Is there any objection to delete the phrase ‘and bureaus’ on page 7, line

26? (Silence) The Chair hears none; the amendments is approved.

xxx xxx xxx

MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1

propose to put a period (.) after ‘captain’ and on line 29, delete ‘and all’ and substitute it with

HE SHALL ALSO APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the proposed amendment

because it makes it clear that those other officers mentioned therein do not have to be

confirmed by the Commission on Appointments.

MR. DAVIDE: Madam President.

THE PRESIDENT: Commissioner Davide is recognized.

xxx xxx xxx

MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that

after “captain” we insert the following words: AND OTHER OFFICERS WHOSE

APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?

FR. BERNAS: It is a little vague.

MR. DAVIDE: In other words, there are positions provided for in the Constitution whose

appointments are vested in the President, as a matter of fact like those of the different

constitutional commissions.

FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list

of those appointments which constitutionally require confirmation of the Commission on

Appointments,

MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.

FR. BERNAS: Will Commissioner Davide restate his proposed amendment?

MR. DAVIDE: After ‘captain,’ add the following: AND OTHER OFFICERS WHOSE

APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.

FR. BERNAS: How about:”AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE

CONFIRMATION UNDER THIS CONSTITUTION”?

MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

Page 8: Stat Con Midterm Cases

FR. BERNAS: That will clarify things.

THE PRESIDENT: Does the Committee accept?

MR. REGALADO: Just for the record, of course, that excludes those officers which the

Constitution does not require confirmation by the Commission on Appointments, like the

members of the judiciary and the Ombudsman.

MR. DAVIDE: That is correct. That is very clear from the modification made by

Commissioner Bernas.

THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and

Davide.

xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners

Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the

amendment, as amended, is approved 10 (Emphasis supplied).

It is, therefore, clear that appointments to the second and third groups of officers can be

made by the President without the consent (confirmation) of the Commission on

Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of

Sec. 16, Article VII reading-

He (the President) shall also appoint all other officers of the Government whose

appointments are not otherwise provided for by law and those whom he may be authorized

by law to appoint . . . . (Emphasis supplied)

with particular reference to the word “also,” implies that the President shall “in like manner”

appoint the officers mentioned in said second sentence. In other words, the President shall

appoint the officers mentioned in said second sentence in the same manner as he appoints

officers mentioned in the first sentence, that is, by nomination and with the consent

(confirmation) of the Commission on Appointments.

Amicus curiae’s reliance on the word “also” in said second sentence is not necessarily

supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word

“also” could mean “in addition; as well; besides, too” (Webster’s International Dictionary, p.

62, 1981 edition) which meanings could, on the contrary, stress that the word “also” in said

second sentence means that the President, in addition to nominating and, with the consent

of the Commission on Appointments, appointing the officers enumerated in the first

sentence, can appoint (without such consent (confirmation) the officers mentioned in the

second sentence-

Page 9: Stat Con Midterm Cases

Rather than limit the area of consideration to the possible meanings of the word “also” as

used in the context of said second sentence, the Court has chosen to derive significance

from the fact that the first sentence speaks of nomination by the President and appointment

by the President with the consent of the Commission on Appointments, whereas, the

second sentence speaks only of appointment by the President. And, this use of different

language in two (2) sentences proximate to each other underscores a difference in

message conveyed and perceptions established, in line with Judge Learned Hand’s

observation that “words are not pebbles in alien juxtaposition” but, more so, because the

recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify

such differences.

As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution,

there are officers whose appointments require no confirmation of the Commission on

Appointments, even if such officers may be higher in rank, compared to some officers

whose appointments have to be confirmed by the Commission on Appointments under the

first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the

Central Bank Governor requires no confirmation by the Commission on Appointments, even

if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in

the Consular Service.

But these contrasts, while initially impressive, merely underscore the purposive intention

and deliberate judgment of the framers of the 1987 Constitution that, except as to those

officers whose appointments require the consent of the Commission on Appointments by

express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are

left to the President without need of confirmation by the Commission on Appointments. This

conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987

Constitution were knowledgeable of what they were doing and of the foreseeable effects

thereof.

Besides, the power to appoint is fundamentally executive or presidential in character.

Limitations on or qualifications of such power should be strictly construed against them.

Such limitations or qualifications must be clearly stated in order to be recognized. But, it is

only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by

the President to the positions therein enumerated require the consent of the Commission on

Appointments.

As to the fourth group of officers whom the President can appoint, the intervenor

Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the

1987 Constitution, which reads:

Page 10: Stat Con Midterm Cases

The Congress may, by law, vest the appointment of other officers lower in rank in the

President alone, in the courts, or in the heads of departments, agencies, commissions, or

boards. [Emphasis supplied].

and argues that, since a law is needed to vest the appointment of lower-ranked officers in

the President alone, this implies that, in the absence of such a law, lower-ranked officers

have to be appointed by the President subject to confirmation by the Commission on

Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked

officers should be appointed by the President, subject also to confirmation by the

Commission on Appointments.

The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,

abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law

vest their appointment in the President, in the courts, or in the heads of the various

departments, agencies, commissions, or boards in the government. No reason however is

submitted for the use of the word “alone” in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a

careful study of the deliberations of the 1986 Constitutional Commission, that the use of the

word alone” after the word “President” in said third sentence of Sec. 16, Article VII is, more

than anything else, a slip or lapses in draftsmanship. It will be recalled that, in the 1935

Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII

thereof —

…; but the Congress may by law vest the appointment of inferior officers, in the

President alone, in the courts, or in the heads of departments. [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which

makes practically all presidential appointments subject to confirmation by the Commission

on Appointments, thus-

3. The President shall nominate and with the consent of the Commission on Appointments,

shall appoint the heads of the executive departments and bureaus, officers of the Army from

the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and

all other officers of the Government whose appointments are not herein provided for, and

those whom he may be authorized by law to appoint; …

In other words, since the 1935 Constitution subjects, as a general rule, presidential

appointments to confirmation by the Commission on Appointments, the same 1935

Constitution saw fit, by way of an exception to such rule, to provide that Congress may,

however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in

rank” referred to in the 1987 Constitution) in the President alone, in the courts, or in the

heads of departments,

Page 11: Stat Con Midterm Cases

In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of

its framers was to exclude presidential appointments from confirmation by the Commission

on Appointments, except appointments to offices expressly mentioned in the first sentence

of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of

Sec. 16, Article VII the word “alone” after the word “President” in providing that Congress

may by law vest the appointment of lower-ranked officers in the President alone, or in the

courts, or in the heads of departments, because the power to appoint officers whom he (the

President) may be authorized by law to appoint is already vested in the President, without

need of confirmation by the Commission on Appointments, in the second sentence of the

same Sec. 16, Article VII.

Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the

case of lower-ranked officers, the Congress may by law vest their appointment in the

President, in the courts, or in the heads of various departments of the government. In short,

the word “alone” in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a

literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution,

appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this

redundancy cannot prevail over the clear and positive intent of the framers of the 1987

Constitution that presidential appointments, except those mentioned in the first sentence of

Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments.

Coming now to the immediate question before the Court, it is evident that the position of

Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first

group of appointments where the consent of the Commission on Appointments is required.

As a matter of fact, as already pointed out, while the 1935 Constitution includes “heads of

bureaus” among those officers whose appointments need the consent of the Commission

on Appointments, the 1987 Constitution on the other hand, deliberately excluded the

position of “heads of bureaus” from appointments that need the consent (confirmation) of

the Commission on Appointments.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the

Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise

known as the Tariff and Customs Code of the Philippines, which was enacted by the

Congress of the Philippines on 22 June 1957, reads as follows:

601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one

assistant chief, to be known respectively as the Commissioner (hereinafter known as the

‘Commissioner’) and Assistant Commissioner of Customs, who shall each receive an

annual compensation in accordance with the rates prescribed by existing laws. The

Assistant Commissioner of Customs shall be appointed by the proper department head.

Page 12: Stat Con Midterm Cases

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential

Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus

amended, now reads as follows:

Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one

chief and one assistant chief, to be known respectively as the Commissioner (hereinafter

known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an

annual compensation in accordance with the rates prescribed by existing law. The

Commissioner and the Deputy Commissioner of Customs shall be appointed by the

President of the Philippines (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the

effectivity of the 1935 Constitution, under which the President may nominate and, with the

consent of the Commission on Appointments, appoint the heads of bureaus, like the

Commissioner of the Bureau of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34

have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment

of the Commissioner of the Bureau of Customs is one that devolves on the President, as an

appointment he is authorized by law to make, such appointment, however, no longer needs

the confirmation of the Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional

authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau

of Customs, without submitting his nomination to the Commission on Appointments for

confirmation. He is thus entitled to exercise the full authority and functions of the office and

to receive all the salaries and emoluments pertaining thereto.

WHEREFORE, the petition and petition in intervention should be, as they are,

hereby DISMISSED. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Page 13: Stat Con Midterm Cases

Perfecto v Meer 85 Phil 552GREGORIO PERFECTO vs. BIBIANO L. MEER[G.R. No. L-2348. February 27, 1950.]

Facts:In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio Perfecto to pay income tax upon his salary as member of this Court during the year 1946. After paying the amount (P802), he instituted this action in the Manila Court of First Instance contending that the assessment was illegal, his salary not being taxable for the reason that imposition of taxes thereon would reduce it in violation of the Constitution.

Issue:Does the imposition of an income tax upon this salary amount to a diminution thereof?

Held:Yes. As in the United States during the second period, we must hold that salaries of judges are not included in the word "income" taxed by the Income Tax Law. Two paramount circumstances may additionally be indicated, to wit: First, when the Income Tax Law was first applied to the Philippines 1913, taxable "income" did not include salaries of judicial officers when these are protected from diminution. That was the prevailing official belief in the United States, which must be deemed to have been transplanted here ; and second, when the Philippine Constitutional Convention approved (in 1935) the prohibition against diminution of the judges' compensation, the Federal principle was known that income tax on judicial salaries really impairs them.

This is not proclaiming a general tax immunity for men on the bench. These pay taxes. Upon buying gasoline, or cars or other commodities, they pay the corresponding duties. Owning real property, they pay taxes thereon. And on incomes other than their judicial salary, assessments are levied. It is only when the tax is charged directly on their salary and the effect of the tax is to diminish their official stipend — that the taxation must be resisted as an infringement of the fundamental charter.

Judges would indeed be hapless guardians of the Constitution if they did not perceive and block encroachments upon their prerogatives in whatever form. The undiminishable character of judicial salaries is not a mere privilege of judges — personal and therefore waivable — but a basic limitation upon legislative or executive action imposed in the public interest (Evans vs. Gore)

Page 14: Stat Con Midterm Cases

93 Phil. 699 – Political Law – The Judiciary – Te Legislature – Separation of Powers

Statutory Construction – Who May Interpret Laws

Saturnino David, the then Collector of Internal Revenue, ordered the taxing of Justice

Pastor Endencia’s and Justice Fernando Jugo’s (and other judges’) salary pursuant to Sec.

13 of Republic Act No. 590 which provides that

No salary wherever received by any public officer of the Republic of the Philippines shall be

considered as exempt from the income tax, payment of which is hereby declared not to

be a diminution of his compensation fixed by the Constitution or by law.

The judges however argued that under the case of Perfecto vs Meer, judges are exempt

from taxation – this is also in observance of the doctrine of separation of powers, i.e., the

executive, to which the Internal Revenue reports, is separate from the judiciary; that under

the Constitution, the judiciary is independent and the salaries of judges may not be

diminished by the other branches of government; that taxing their salaries is already a

diminution of their benefits/salaries (see Section 9, Art. VIII, Constitution).

The Solicitor General, arguing in behalf of the CIR, states that the decision in Perfecto vs

Meer was rendered ineffective when Congress enacted Republic Act No. 590.

ISSUE: Whether or not Sec 13 of RA 590 is constitutional.

HELD: No. The said provision is a violation of the separation of powers. Only courts have

the power to interpret laws. Congress makes laws but courts interpret them. In Sec. 13,

R.A. 590, Congress is already encroaching upon the functions of the courts when it inserted

the phrase: “payment of which [tax] is hereby declared not to be a diminution of his

compensation fixed by the Constitution or by law.”

Here, Congress is already saying that imposing taxes upon judges is not a diminution of

their salary. This is a clear example of interpretation or ascertainment of the meaning of the

phrase “which shall not be diminished during their continuance in office,” found in Section 9,

Article VIII of the Constitution, referring to the salaries of judicial officers. This act of

interpreting the Constitution or any part thereof by the Legislature is an invasion of the well-

defined and established province and jurisdiction of the Judiciary.

“The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or

act declaratory of what the law was before its passage, so as to give it any binding weight

with the courts. A legislative definition of a word as used in a statute is not conclusive of its

meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function

in defining a term.

The interpretation and application of the Constitution and of statutes is within the exclusive

province and jurisdiction of the judicial department, and that in enacting a law, the

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Legislature may not legally provide therein that it be interpreted in such a way that it may

not violate a Constitutional prohibition, thereby tying the hands of the courts in their task of

later interpreting said statute, especially when the interpretation sought and provided in said

statute runs counter to a previous interpretation already given in a case by the highest court

of the land.

 

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 78780               July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO,

JR., petitioners,

vs.

COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME

COURT OF THE PHILIPPINES, respondents.

 

R E S O L U T I O N

MELENCIO-HERRERA, J.:

Petitioners, the duly appointed and qualified Judges presiding overBranches 52, 19 and 53,

respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in

Manila, seek to prohibit and/or perpetually enjoin respondents, the Commissioner of Internal

Revenue and the Financial Officer of the Supreme Court, from making any deduction of

withholding taxes from their salaries.

In a nutshell, they submit that “any tax withheld from their emoluments or compensation as

judicial officers constitutes a decrease or diminution of their salaries, contrary to the

provision of Section 10, Article VIII of the 1987 Constitution mandating that “(d)uring their

continuance in office, their salary shall not be decreased,” even as it is anathema to the

Ideal of an independent judiciary envisioned in and by said Constitution.”

It may be pointed out that, early on, the Court had dealt with the matter administratively in

response to representations that the Court direct its Finance Officer to discontinue the

withholding of taxes from salaries of members of the Bench. Thus, on June 4, 1987, the

Court en banc had reaffirmed the Chief Justice’s directive as follows:

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RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief

Justice’s previous and standing directive to the Fiscal Management and Budget Office of

this Court to continue with the deduction of the withholding taxes from the salaries of the

Justices of the Supreme Court as well as from the salaries of all other members of the

judiciary.

That should have resolved the question. However, with the filing of this petition, the Court

has deemed it best to settle the legal issue raised through this judicial pronouncement. As

will be shown hereinafter, the clear intent of the Constitutional Commission was to delete

the proposed express grant of exemption from payment of income tax to members of the

Judiciary, so as to “give substance to equality among the three branches of Government” in

the words of Commissioner Rigos. In the course of the deliberations, it was further

expressly made clear, specially with regard to Commissioner Joaquin F. Bernas’ accepted

amendment to the amendment of Commissioner Rigos, that the salaries of members of the

Judiciary would be subject to the general income tax applied to all taxpayers.

This intent was somehow and inadvertently not clearly set forth in the final text of the

Constitution as approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent

may have been obscured by the failure to include in the General Provisions a proscription

against exemption of any public officer or employee, including constitutional officers, from

payment of income tax, the Court since then has authorized the continuation of the

deduction of the withholding tax from the salaries of the members of the Supreme Court, as

well as from the salaries of all other members of the Judiciary. The Court hereby makes of

record that it had then discarded the ruling in Perfecto vs. Meer and Endencia vs. David,

infra, that declared the salaries of members of the Judiciary exempt from payment of the

income tax and considered such payment as a diminution of their salaries during their

continuance in office. The Court hereby reiterates that the salaries of Justices and Judges

are properly subject to a general income tax law applicable to all income earners and that

the payment of such income tax by Justices and Judges does not fall within the

constitutional protection against decrease of their salaries during their continuance in office.

A comparison of the Constitutional provisions involved is called for. The 1935 Constitution

provided:

… (The members of the Supreme Court and all judges of inferior courts) shall receive such

compensation as may be fixed by law, which shall not be diminished during their

continuance in office … 1 (Emphasis supplied).

Under the 1973 Constitution, the same provision read:

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The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of

judges of inferior courts shall be fixed by law, which shall not be decreased during their

continuance in office. … 2 (Emphasis ours).

And in respect of income tax exemption, another provision in the same 1973 Constitution

specifically stipulated:

No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax. 3

The provision in the 1987 Constitution, which petitioners rely on, reads:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of

judges of lower courts shall be fixed by law. During their continuance in office, their salary

shall not be decreased. 4(Emphasis supplied).

The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the

1973 Constitution, for which reason, petitioners claim that the intent of the framers is to

revert to the original concept of “non-diminution “of salaries of judicial officers.

The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII,

negate such contention.

The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:

Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court

and of judges of the lower courts shall be fixed by law. During their continuance in office,

their salary shall not be diminished nor subjected to income tax. Until the National Assembly

shall provide otherwise, the Chief Justice shall receive an annual salary of _____________

and each Associate Justice ______________ pesos. 5 (Emphasis ours)

During the debates on the draft Article (Committee Report No. 18), two Commissioners

presented their objections to the provision on tax exemption, thus:

MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does

this not violate the principle of the uniformity of taxation and the principle of equal protection

of the law? After all, tax is levied not on the salary but on the combined income, such that

when the judge receives a salary and it is comingled with the other income, we tax the

income, not the salary. Why do we have to give special privileges to the salary of justices?

MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or

decrease of their salary during their term. This is an indirect way of decreasing their salary

and affecting the independence of the judges.

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MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the

special privilege on taxation might, in effect, be a violation of the principle of uniformity in

taxation and the equal protection clause. 6

x x x           x x x          x x x

MR. OPLE. x x x

Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto

Concepcion, for whom we have the highest respect, to surround the Supreme Court and the

judicial system as a whole with the whole armor of defense against the executive and

legislative invasion of their independence. But in so doing, some of the citizens outside,

especially the humble government employees, might say that in trying to erect a bastion of

justice, we might end up with the fortress of privileges, an island of extra territoriality under

the Republic of the Philippines, because a good number of powers and rights accorded to

the Judiciary here may not be enjoyed in the remotest degree by other employees of the

government.

An example is the exception from income tax, which is a kind of economic immunity, which

is, of course, denied to the entire executive department and the legislative. 7

And during the period of amendments on the draft Article, on July 14, 1986, Commissioner

Cirilo A. Rigos proposed that the term “diminished” be changed to “decreased” and that the

words “nor subjected to income tax” be deleted so as to “give substance to equality among

the three branches in the government.

Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended

the original draft and referred to the ruling of this Court in Perfecto vs. Meer 8 that “the

independence of the judges is of far greater importance than any revenue that could come

from taxing their salaries.” Commissioner Rigos then moved that the matter be put to a vote.

Commissioner Joaquin G. Bernas stood up “in support of an amendment to the amendment

with the request for a modification of the amendment,” as follows:

FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is

not enough to drop the phrase “shall not be subjected to income tax,” because if that is all

that the Gentleman will do, then he will just fall back on the decision in Perfecto vs.

Meer and in Dencia vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696]

which excludes them from income tax, but rather I would propose that the statement will

read: “During their continuance in office, their salary shall not be diminished BUT MAY BE

SUBJECT TO GENERAL INCOME TAX.”IN support of this position, I would say that the

argument seems to be that the justice and judges should not be subjected to income tax

because they already gave up the income from their practice. That is true also of Cabinet

members and all other employees. And I know right now, for instance, there are many

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people who have accepted employment in the government involving a reduction of income

and yet are still subject to income tax. So, they are not the only citizens whose income is

reduced by accepting service in government.

Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner

Rustico F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption,

Commissioner Bernas announced:

During the suspension, we came to an understanding with the original proponent,

Commissioner Rigos, that his amendment on page 6,. line 4 would read: “During their

continuance in office, their salary shall not be DECREASED.”But this is on the

understanding that there will be a provision in the Constitution similar to Section 6 of Article

XV, the General Provisions of the 1973 Constitution, which says:

No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax.

So, we put a period (.) after “DECREASED” on the understanding that the salary of justices

is subject to tax.

When queried about the specific Article in the General Provisions on non-exemption from

tax of salaries of public officers, Commissioner Bernas replied:

FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions.

But at any rate, when we put a period (.) after “DECREASED,” it is on the understanding

that the doctrine in Perfecto vs. Meer and Dencia vs. David will not apply anymore.

The amendment to the original draft, as discussed and understood, was finally approved

without objection.

THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will

be a provision under the Article on General Provisions. Could Commissioner Rosario Braid

kindly take note that the salaries of officials of the government including constitutional

officers shall not be exempt from income tax? The amendment proposed herein and

accepted by the Committee now reads as follows: “During their continuance in office, their

salary shall not be DECREASED”; and the phrase “nor subjected to income tax” is deleted.9

The debates, interpellations and opinions expressed regarding the constitutional provision

in question until it was finally approved by the Commission disclosed that the true intent of

the framers of the 1987 Constitution, in adopting it, was to make the salaries of members of

the Judiciary taxable. The ascertainment of that intent is but in keeping with the

fundamental principle of constitutional construction that the intent of the framers of the

organic law and of the people adopting it should be given effect.10 The primary task in

constitutional construction is to ascertain and thereafter assure the realization of the

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purpose of the framers and of the people in the adoption of the Constitution. 11 it may also be

safely assumed that the people in ratifying the Constitution were guided mainly by the

explanation offered by the framers.12

Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is

again reproduced hereunder:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of

judges of lower courts shall be fixed by law. During their continuance in office, their salary

shall not be decreased. (Emphasis supplied).

it is plain that the Constitution authorizes Congress to pass a law fixing another rate of

compensation of Justices and Judges but such rate must be higher than that which they are

receiving at the time of enactment, or if lower, it would be applicable only to those appointed

after its approval. It would be a strained construction to read into the provision an exemption

from taxation in the light of the discussion in the Constitutional Commission.

With the foregoing interpretation, and as stated heretofore, the ruling that “the imposition of

income tax upon the salary of judges is a diminution thereof, and so violates the

Constitution” in Perfecto vs. Meer,13 as affirmed in Endencia vs. David 14 must be declared

discarded. The framers of the fundamental law, as the alter ego of the people, have

expressed in clear and unmistakable terms the meaning and import of Section 10, Article

VIII, of the 1987 Constitution that they have adopted

Stated otherwise, we accord due respect to the intent of the people, through the discussions

and deliberations of their representatives, in the spirit that all citizens should bear their

aliquot part of the cost of maintaining the government and should share the burden of

general income taxation equitably.

WHEREFORE, the instant petition for Prohibition is hereby DISMISSED.

Aglipay v. Ruiz (Case Digest)Posted on August 10, 2014 by MissDennieIdea

Aglipay v. Ruiz, GR No. L-45459, March 13, 1937

Facts:

Petitioner Aglipay, the head of Phil. Independent Church, filed a writ of prohibition

against respondent Ruiz, the Director of Post, enjoining the latter from issuing

and selling postage stamps commemorative of the 33rd Intl Eucharistic Congress

organized by the Roman Catholic. The petitioner invokes that such issuance and

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selling, as authorized by Act 4052 by the Phil. Legislature, contemplates religious

purpose – for the benefit of a particular sect or church. Hence, this petition.

Issue:

Whether or not the issuing and selling of commemorative stamps is

constitutional?

Held/Reason:

The Court said YES, the issuing and selling of commemorative stamps by the

respondent does not contemplate any favor upon a particular sect or church, but

the purpose was only ‘to advertise the Philippines and attract more tourist’ and

the government just took advantage of an event considered of international

importance, thus, not violating the Constitution on its provision on the separation

of the Church and State. Moreover, the Court stressed that ‘Religious freedom,

as a constitutional mandate is not inhibition of profound reverence for religion

and is not denial of its influence in human affairs’. Emphasizing that, ‘when the

Filipino people ‘implored the aid of Divine Providence’, they thereby manifested

reliance upon Him who guides the destinies of men and nations. The elevating

influence of religion in human society is recognized here as elsewhere. In fact,

certain general concessions are indiscriminately accorded to religious sects and

denominations.’

Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997

D E C I S I O N(En Banc)

BELLOSILLO, J.:

I.      THE FACTS

Pursuant to the privatization program of the Philippine Government, the GSIS sold in public auction its stake in Manila Hotel Corporation (MHC). Only 2 bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel

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operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Petitioner filed a petition before the Supreme Court to compel the GSIS to allow it to match the bid of Renong Berhad. It invoked the Filipino First Policy enshrined in §10, paragraph 2, Article XII of the 1987 Constitution, which provides that “in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.”

II.    THE ISSUES

1.   Whether §10, paragraph 2, Article XII of the 1987 Constitution is a self-executing provision and does not need implementing legislation to carry it into effect;

2.     Assuming §10, paragraph 2, Article XII is self-executing, whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation;

3.    Whether GSIS is included in the term “State,” hence, mandated to implement §10, paragraph 2, Article XII of the Constitution; and

4.   Assuming GSIS is part of the State, whether it should give preference to the petitioner, a Filipino corporation, over Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation.

III.   THE RULING

[The Court, voting 11-4, DISMISSED the petition.]

1.    YES, §10, paragraph 2, Article XII of the 1987 Constitution is a self-executing provision and does not need implementing legislation to carry it into effect.

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

xxx                              xxx                              xxx

Respondents . . . argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. The argument is flawed.  If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony.  A constitutional provision may be self-executing in one part and non-self-executing in another.

xxx. Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement.  From its very words the provision does not require any legislation to put it in operation.  It is per se judicially enforceable.  When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that - qualified Filipinos shall be preferred.  And when our Constitution declares that a right exists in certain specified circumstances an action may be

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maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings.  Where there is a right there is a remedy.  Ubi jus ibi remedium.

2.    YES, the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation.

In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos.

xxx                              xxx                              xxx

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and  failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood.  Verily, Manila Hotel has become part of our national economy and patrimony.  For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel.  In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands.  Consequently, we cannot sustain respondents’ claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands.

3.    YES, GSIS is included in the term “State,” hence, it is mandated to implement §10, paragraph 2, Article XII of the Constitution.

It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization.  [T]his fact alone makes the sale of the assets of respondents GSIS and MHC a “state action.”  In constitutional jurisprudence, the acts of persons distinct from the government are considered “state action” covered by the Constitution (1) when the activity it engages in is a “public function;” (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action.  It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of “state action.”  Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command.

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

4.    YES, GSIS should give preference to the petitioner in the sale of the controlling shares of the Manila Hotel Corporation.

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

xxx                              xxx                              xxx

Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason  the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid.  In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity.  And if the Filipino matches the bid of a foreign firm the award should go to the Filipino.  It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution.  For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded.  To ignore it would be to sanction a perilous skirting of the basic law.