Ocampo v. Secretary of Justice

EXCERPTS FROM THE MINUTES OF JANUARY 18, 1955

[G.R. No. L-7910. January 18, 1955.]

OCAMPO, ET AL., petitioner, vs. THE SECRETARY OF JUSTICE, ET AL., respondent.

In Ocampo, et al. vs. the Secretary of Justice, et al., G.R. No. L-7910, the petition was denied, without costs, due to insufficient votes to invalidate section 3 of Republic Act No. 1186.

Chief Justice Parás, and Justices Padilla, Reyes (A.) and Labrador voted to uphold that particular section;

Justices Pablo, Bengzon, Montemayor, Jugo, Bautista, Concepcion and Reyes, J. B. L., believe it is unconstitutional.

The opinions follow:

RESOLUTION

PARAS, C.J p:

Under the Judiciary Act of 1948, Republic Act No. 296, the judicial function in Courts of First Instance was vested in District Judges, Judges-at-Large and Cadastral Judges. Sixteen Judicial Districts were constituted, and seventy-four District Judges were provided and distributed thereover in the proportion fixed in the Act. Aside from the seventy-four District Judges, section 53 of the Act provided for the appointment of "eighteen Judges-at-Large and fifteen Cadastral Judges who shall not be assigned permanently to any judicial district and who shall render duty in such district or province as may, from time to time, be designated by the Department Head." The petitioners were duly appointed and had qualified under said section 53, four as Judges-at-Large and six as Cadastral Judges.

Under Republic Act No. 1186, which took effect on June 19, 1954, several provisions of the Judiciary Act of 1948 were amended. Now, the judicial function in Court of First Instance is vested in District Judges; and although the number of Judicial Districts is maintained, the number of District Judges has been increased to 114. Section 3 of Republic Act No. 1186 provides that "all the existing positions of Judges-at-Large and Cadastral Judges are abolished, and section fifty-three of Republic Act Numbered Two Hundred and Ninety-six is hereby repealed." Shortly after the effectivity of Republic Act No. 1186, the Secretary of Justice informed the petitioners that they had ceased as Judges-at-Large and Cadastral Judges. The petitioners have filed the present petition for declaratory relief and/or mandamus, for a judicial declaration that section 3 of Republic Act No. 1186 is unconstitutional and void, that the respective positions and offices of the petitioners under the Judiciary Act of 1948 still exists, and that they are entitled to exercise the powers and functions of said offices; and for a directive against the Secretary of Justice to permit the petitioners to continue in the exercise of said powers and functions, and against the Chief Accounting Officer and Judicial Officer of the Department of Justice to pay the petitioners their corresponding compensation beginning June 20, 1954.

Section 1 of Article VIII of the Constitution provides that "the judicial power shall be vested in the Supreme Court and in such inferior courts as may be established by law," and section 9 of the same Article provides that "the Members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, until they reached the age of 70 years, or become incapacitated to discharge the duties of their office." The power of Congress under section 1 to organize, reorganize and even abolish courts inferior to the Supreme Court, is conceded; and the contention advanced on behalf of the petitioners is merely that such power is restricted by and may be reconciled with section 9 in the sense that they should be allowed to continue holding their offices during good behavior, until they reached the age of seventy years or become incapacitated, notwithstanding the reorganization effected under Republic Act No. 1186 and the express abolition of their positions by section 3 thereof. IcCEDA

In this case we have to assume, both from the explanatory note of the basic Bill and from the sponsorship speeches, that the main objective of Republic Act No. 1186 is to vest the judicial function of Courts of First Instance in District Judges, eliminating Judges-at-Large and Cadastral Judges, the creation of whose positions (by Republic Act No. 296, section 53), as Mr. Justice Padilla says in a separate opinion, offends against the constitutional mandate that no judge appointed for a particular district shall be transferred to another district without the approval of the Supreme Court. For under said Republic Act No. 296, those judges could be assigned by the Secretary of Justice to any Judicial District, — a practice undoubtedly allowing, if it had not already allowed, the designation of any of them to try specific cases with perhaps indicated results. Indeed, the present Administration is to be commended for thus totally doing away with the system of "rigodon de jueces", which under the former law it could have maintained to its obvious advantage. It is very significant that not a single District Judge has been eased out. We cannot accept the insinuation that the petitioners have been purposely removed or legislated out, because the insolated personal opinion expressed by one or two members of Congress that undersirable judges must be weeded out, is not controlling and, as already stated, all positions of Judges-at-Large and Cadastral Judges, and not merely those held by the petitioners, were abolished. If petitioners were not, after the abolition of their posts, retained in the judiciary, like the others by giving them appointment as District Judges, which involves a promotion to positions of higher category, that is not attributable to Republic Act No. 1186, for petitioners are in fact casualties of the legitimate exercise by the President of his prerogative of appointment. Moreover, if the petitioners were really intentionally eased cut for being "undesirable", no provision for the payment of any gratuity would have been provided, because removal for cause is never rewarded.

It is argued for the petitioners that Republic Act No. 1186 has not abolished any Court of First Instance and, on the contrary, it has increased the number of District Judges. This is followed by the reminder that in American States where the legislative power to abolish a judgeship was sustained, the corresponding court was also abolished. The flaw of this argument lies in the fact that none of the petitioners was a District Judge presiding over a District Court, and they were all only occupying the positions of either Judge-at-Large or Cadastral Judge in virtue of section 53 of the Judiciary Act of 1948, which positions were all abolished and which section was repealed expressly by Republic Act No. 1186; hence it was no longer necessary to abolish any court. It is not amiss to recall that the position of District Judge has heretofore always been considered as distinct and different from that of Judge-at-Large or Cadastral Judge, such that the latter had to look forward to being promoted and made a District Judge under a new and different appointment with increased compensation.

Our considered opinion is that if it be, as it is, admitted that Congress can abolish courts inferior to the Supreme Court, it can do the lesser thing of reducing the number or changing the category of judges presiding over such courts. In the case of Zandueta vs. De la Costa, 66 Phil., 615, Mr. Justice Laurel, one of the most eminent members of the Constitutional Convention, voiced the opinion that the Legislature may abolish courts inferior to the Supreme Court and reorganize them territorially or otherwise, thereby necessitating new appointments and commissions. Indeed, only recently, in the case of Brillo vs. Enage, G.R. No. L-7115, we ourselves expressed the view that "el de recho de un juez de dosempeñarlo hasta los 70 años de edad o se incapacite no priva al Congreso de su facultad de abolir, fusionar o reorganizar juzgados no constitucionales." Citations from other jurisdictions contains pronouncements to the effect that "if the framers of the Constitution intended to leave it to the legislature to establish and abolish courts as the public necessities demanded, this was not qualified or limited by the clause as to the judge's term of office," (McCulley vs. State, 53 S. S., 134); "a constitutional provision that judges of a certain court shall hold their offices for five years must yield to another provision that the legislature may alter or abolish the court, and therefore the legislature may reduce the number of judges by fixing an end to the term of certain of them although within five years after they took office. State ex rel. Kenny vs. Hudspeth (1896 59 N.J.L., 504, 37 Atl., 504, 37 Atl., 67; Holle vs. State (1898) 62 N.J.L., 533, 41 Atl., 8832, affirmed in (1900) 64 N.J.L., 363, 48 Atl., 118.' (4 A.L.R., 216.); "the legislative power to create a court carries with it the power to abolish it. When the court is abolished any unexpired term is abolished also. The judge of such a court takes office with that encumbrance and knowledge. (Cherokee County vs. Savage, 32 So. 2nd 803); and "the legislature has the power to abolish as well as to create, to diminish as well as to increase, the number of judicial districts (Aikman vs. Edwards, 30 L.R.A., 149, 55 Kan., 751, 42 Pac., 366). TaHIDS

The reasons for the above pronouncements are, among others, that security of tenure is certainly not a personal privilege of any particular judge (concurring opinion of Mr. Justice Laurel in Zandueta vs. De la Costa, supra); a public officer, no matter what the department of the government in which he serves is a public servant, and while the public should deal justly with him, his individual rights are by no means of primary importance (Aikman vs. Edwards, 30. L.R.A., 149, 55 Kan., 751, 42 Pac., 366); the judge's right to his full term and his full salary are not dependent alone upon his good conduct, but also upon the contingency that the legislature may for the public good, in ordaining and establishing the courts, from time to time consider his office unnecessary and abolish it (McCulley vs. State, 53 S. W., 134). 

Properly and logically speaking, the petitioners were not removed from office, because a removal implies that the office exists after the ouster. Thus in the case of Manalang vs. Quitoriano, G.R. No. L-6898, promulgated on April 30, 1954, this Court said:

"This pretense can not be sustained. To begin with, petitioner has never been Commissioner of the National Employment Service and, hence, he could not have been, and has not been, removed therefrom. Secondly, to remove an officer is to oust him from office before the expiration of his term. A removal implies that the office exists after the ouster. Such is not the case of petitioner herein, for Republic Act No. 761 expressly abolished the Placement Bureau, and, by implication, the office of the Director thereof, which, obviously, cannot exist without said Bureau. By the abolition of the latter and of said office, the right thereto of its incumbent, petitioner herein, was necessarily extinguished thereby. Accordingly, the constitutional mandate to the effect that 'no officer or employee in the civil service shall be removed or suspended except for cause as provided by law' (Art. XII, Sec. 4, Phil. Const.), is not in point, for there has been neither a removal nor a suspension of the petitioner Manalang, but an abolition of his former office of Director of the Placement Bureau, which, admittedly, is within the power of Congress to undertake the legislation." (supra, 50 Off. Gaz., 2515.)

To the same effect is the following:

"To dispense with an unnecessary court is not to change his term of judgeship, or is it to affect the guaranties of the Constitution as to his salary, nor does it remove the judge from office. The office no longer exists, and, of course, a removal from an office that has no existence is not a conceivable proposition."(McCulley vs. State, 53 S.W., 134.)

For all practical purposes and to all constitutional intents, a judge of first instance is on the same footing as an officer or employee in the civil service insofar as permanence of tenure is concerned, because whereas the judge is to serve during good behavior, an officer or employee in the civil service may not be removed or suspended except for cause as provided by law. In both cases the office is statutory, and it is fundamental and elementary that a statute cannot be irrepealable. The petitioners are certainly mistaken in believing that the only way to reconcile section 1 with section 9 of Article VIII of the Constitution is to hold that any attempt to abolish the position of a judge should only be made effective after the expiration of his term; because it is no less tenable and sound to rule that a judge may hold office during good behavior only as long as his position lasts. It may not be urged that the latter construction would render section 9 meaningless, for the reason that, in the absence of said constitutional provision, the Congress may fix the judge's term of office at, say, one year, two years, three years, or any definite period.

The case of Commonwealth vs. Gamble, 62 Pa., 343, mainly relied upon by the petitioners, is not decisive, since the statute therein involved singled out a particular judge. In the case at bar, as already pointed out, all positions of Judge-at-Large and Cadastral Judge were abolished. Besides, the case of Commonwealth vs. Gamble was invoked in the case of Aikman vs. Edwards, supra, and the Supreme Court of Kansas did not follow it, holding: "To allow the legislature, while making one new district, to legislate the judge of an old district out of office, and provide for appointment or election of two new judges, would clearly be vicious in the principle, and this is the class of legislation which falls within the constitutional inhibition. But to prohibit the legislature from abolishing a district which has been improvidently established, and thereby vacate the office of a judge, is another and altogether different thing, which the constitution does not, in express terms, prohibit."

There is no point in the observation that the implied power of Congress to abolish inferior courts cannot prevail over the express constitutional provision on tenure of office. The petitioners' case is also necessarily premised only upon the implied proposition that said tenure may not be shortened. If the power to abolish were intended to be qualified by the permanence of tenure, the Constitution would have, along with the provision that the judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated, further ordained that their term shall not be shortened or affected by the abolition of any inferior courts; in the same way that although the judges "shall receive such compensation as may be fixed by law," the Constitution contains the express limitation that such compensation "shall not be diminished during their continuance in office" (section 9, Article VIII, Constitution). cDSaEH

There is nothing to the distinction attempted to be drawn from the circumstances that the legislative power to abolish a court sustained in American cases, was expressly conferred by the Constitution, whereas the right of our Congress to abolish is merely implied from its constitutional power to create inferior courts. In both cases the power exists, and we cannot see any difference as to its force and effect when exercised.

Let it be clearly understood that we are not here concerned with a case of one or more judges of first instance being singled out for elimination nor with a case contemplated by Mr. Justice Laurel in his concurring opinion in Zandueta vs. De la Costa, supra, when he gave the warning that where the violation of a constitutional provision regarding security of judicial tenure is palpable and plain, and the legislative power of reorganization is sought to cloak an unconstitutional and evil purpose, it will be the time to make the hammer fall and heavily.

As the power of appointment carries with it the power of removal, it is more logical to suppose that, as the judges are appointed by the President, the security of tenure contemplated by section 9 of Article VIII of the Constitution, was intended more as a restraint against Executive removal; and as a matter of fact, in implementation of this objective, it has been provided in section 67 of the Judiciary Act of 1948 that no District Judge, Judge-at-Large or Cadastral Judge shall be separated or removed from office by the President of the Philippines unless sufficient cause shall exist, in the judgment of the Supreme Court, involving serious misconduct or inefficiency, for the removal of said judge from office after the proper proceedings.

We are not blind to the great importance and imperative desirability of having and maintaining an independent judiciary. At the same time, we cannot abridge the powers of Congress under the Constitution. It is not for us to judge the wisdom of the framers of our Constitution in granting Congress legislative power with reference to the establishment of courts inferior to the Supreme Court. But with all the constitutional and statutory safeguards, and any device conceivable by the ingenuity of man, for judicial independence, after all there can be no surer guaranty for a true administration of justice than the God-given character and fitness of those appointed to the Bench. The judges may be guaranteed a fixed tenure of office during good behavior, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be nothing more than a myth or an empty ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress — we do not say unlimited but as herein exercised — to reorganize inferior courts.

PADILLA, J.:

In so far as the security of tenure of judges is concerned, I am in accord with Mr. Justice Bengzon's view. A fixed tenure during good behavior, long recognized as essential to an independent judiciary, has in this country been translated into a constitutional ban limiting the powers of Congress in dealing with the courts and for that reason not to be written off with the argument that as Congress has the express authority to establish courts inferior to the Supreme Court, it necessarily has also the implied authority to abolish them. For how could there be a fixed tenure if the office may at any time be abolished? As the Constitution expressly prohibits the removal of a judge (except for cause) during his term of office, reason dictates that the implied power to abolish courts must be deemed withheld where its exercise would bring about what is prohibited. What the Constitution prohibits the Congress to do directly should not be allowed to be done by indirection, circumvention and resort to an implied power to nullify an express constitutional mandate. HCEISc

The Constitution provides and ordains that "all judges of inferior courts shall hold office during good behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office" and "shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office." 2Republic Act No. 296 provides:

In addition to the District Judges mentioned in section forty-nine hereof there shall also be appointed eighteen Judges-at-large and fifteen Cadastral Judges who shall not be assigned permanently to any judicial and who shall render duty in such district or province as may, from time to time, be designated by the Department Head. (Italics supplied.) 

This is the law that created or established the office of the petitioners. The law offends against section 7, Article VIII, of the Constitution, not only because it does not determine or fix the residence of the petitioners as judges, as ordained by the Constitution, but also because the authority to designate them to render duty in districts or provinces other than those of their residence is lodged in the Department Head alone when according to the same section and article of the Constitution the authority must be exercised with the approval of the Supreme Court. There is no reason why section 9, Article VIII, of the Constitution should be given effect and section 7 of the same article nullified.

The last paragraph of section 3 of Republic Act No. 1186 repeals section 53 of Republic Act No. 296 quoted above and the positions of Judge-at-large and Cadastral Judge are thereby abolished. The paragraph is assailed on the ground that it infringes upon section 9, Article VIII, of the Constitution. By repealing section 53 of Republic Act No. 296 and abolishing the anomalous judicial positions therein created, the Congress has but rectified a grave error — with intent, no doubt, to make the judicial system conform to the Constitution by eliminating therefrom judges that could be moved about at the pleasure of an Executive Department and to that extent exposed to extraneous influences. To permit the continuance of a system that offends against the fundamental law would be a dereliction of duty on the part of Congress. On the other hand, the Constitution is upheld and not violated where judicial positions created or established contrary to its provisions — such as those held by the herein petitioners — are abolished.

For these reasons the petition should be dismissed. ACETIa

REYES, A., J., concurring:

I concur in the opinion of the Chief Justice. But I must say further that even supposing that Congress may not, as a general rule, abolish a judicial post without allowing the incumbent to finish his term of office, still I see weight in Mr. Justice Padilla's opinion that to allow the petitioners herein to continue as judges-at-large and cadastral judges without permanent assignment and forever subject to being moved from one judicial district to another without the consent of the Supreme Court would be to perpetuate a system repulsive to an independent judiciary and a clear evasion of the Constitution.

LABRADOR, J.:

I do not dispute the fundamental principles which my brethren have expounded as underlying our scheme of government. The independence of the judiciary, its inviolability against executive or legislative encroachment and the permanence of judicial tenure are so plain an to need elucidation. I am also aware of the fact that the judiciary is the weakest of all the three departments of our Government. However, in our zealousness to conserve judicial independence we should be careful to guard against self-pity and passion taking the better part of reason and allowing them to becloud the real issue. The question should be dispassionately considered, bearing in mind, on the one hand, that every presumption of good faith should be accorded a coordinate department that had decreed the passage of the disputed legislation, especially as in the present instance the legislative department has been expressly granted the power to organize or reorganize inferior courts (section 1, Article VIII, Constitution of the Philippines), and on the other, the nature of the offices abolished and the underlying causes for said abolition, as these circumstances in a very great measure may give an aspect to the issue different from what it may appear to be.

The office of judge-at-large was introduced in this jurisdiction in the year 1902. It is a peculiar contraption unknown in other judicial systems. Under Act No. 396 (Philippine Commission, May 9, 1902), four judges of first instance, in addition to those created an Act No. 136, were to be appointed, who "may be required to perform the duties of the judge of first instance of any province, when directed by the Civil Governor." But under the first judicial reorganization act (Act No. 2347, approved February 28, 1914), the positions of auxiliary judges of first instance were created in the place of judges-at-large. The auxiliary judge differed from the judge-at-large in that he is appointed to a group of judicial districts, and performs functions in the group, while the judge-at-large has no specific district or group of districts to which he is appointed and acquires the right to hold court and exercise judicial function only if and when he is assigned by the Executive Department to a district. Under Act No. 2347 the auxiliary judge was to hold session in the place of his residence. Specific prohibition existed against his serving in any district not included in his commission. (Sec. 4.)

The positions of auxiliary judges were continued in the Administrative Code of 1916 and 1917. Under the latter, the stations of auxiliary judges were fixed, and they were to hold court thereat without need of assignment by the Secretary of Justice, but only upon request of a judge of a district. (Secs. 157-160.) These positions of auxiliary judges were continued until December 6, 1932, when Act No. 4007, by amending Section 157 of the Administrative Code, again created the positions of six judges-at-large, who were not assigned to any judicial district but were to hold court in any district when the Secretary of Justice designates them to do so. HATICc

"SEC. 157.Judges-at-large. — In addition to the judges mentioned in section one hundred and fifty-four hereof, as amended, there shall also be appointed six judges who shall not be assigned permanently to any judicial district and who shall render duty in such districts or province as may, from time to time, be designated by the Department Head. (Sec. 24, Act No. 4007.)

The above was the set-up of judges-at-large when the Constitution was approved. Thereafter, on November 7, 1936, Commonwealth Act No. 145 reduced the number of judges-at-large to five. (Sec. 3.) On August 19, 1938, C. A. No. 348 increased the number of judges-at-large to twelve. (Sec. 2.)

The positions of cadastral judges were first created under C. A. No. 504, which provides

"SEC. 1.In addition to the existing positions of judges of first instance, there are created fifteen positions of judges of first instance to be appointed as provided by law. Said judges shall be paid a salary of eight thousand four hundred pesos per annum each, and shall have the same rank, powers and privileges enjoyed by and granted to judges of first instance, but their jurisdiction shall be limited to cases arising under the Cadastral Act and the Land Registration Act. They shall render duty in such judicial districts or provinces as may, from time to time, be designated by the Secretary of Justice."

There were, prior to the passage of Republic Act No. 1186, 18 positions of judges-at-large and 15 positions of cadastral judges. (Sec. 53, R.A. No. 296.) While the idea of a judge-at-large may be traced to an early date (1902) it was suppressed in 1914 and did not appear again in our judicial system until 1932. Its usefulness as a contrivance to help in the clearing of clogged dockets may be admitted, but its useful existence for a long time in our statute books can not cure or remedy its fundamental defect — the lack of a specific district where the judge can exercise his judicial functions freely without interference from any one, much less an executive or administrative superior, and from which he may not be moved away without his consent. It must be remembered that one of the legal ramparts guarding judicial independence is irremovability from the district to which one is appointed. This principle was first enunciated in the case of Borromeo vs. Mariano, 41 Phil., 322, and I hold that it should not apply to district judges alone, but to all judges of any court of any grade. If a judge can be moved from one place to another at the will or mercy of an executive official he certainly cannot have the freedom to act in the trial and decision of cases according to the dictates of his reason and conscience; there is no hindrance for him to trade his convictions for personal conveniences in order to win favor with the executive authority that assigns him and upon whose goodwill his promotion depends.

The other fundamental defect of the system of judges-at-large is the power of the Executive branch to determine where judges shall sit. Through the exercise of this power the Executive branch can assign friendly, or sympathetic, or willing tools to any place to try specific cases so that these may be tried and decided in the form and manner in which the Executive branch desires. TADaES

The office of judge-at-large, therefore, is incompatible with the principle of judicial independence. If in the cases of Borromeo vs. Mariano, supra, and Concepcion vs. Paredes (42 Phil., 599), this Court frowned upon the attempt to transfer a judge to another district against his will and the attempt to decide by lot where judges shall sit, these being, according to the Court, subversive of judicial independence, self-respect, and integrity, it is much more undesirable and condemnable to have judges act as such only if and when directed by an executive officer and only at places to which they are assigned.

Section 7 of Article VIII of the Constitution provides:

"No judge appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court. The Congress shall by law determine the residence of judges of inferior courts."

The above provision on the residence of judges was inserted because judges of first instance used to reside in Manila, or in places other than where they hold court, making them unavailable in their courts except where they actually hold sessions, to the great inconvenience of the public, and impairing their efficiency, because the time and energy spent by them in going to and from their residence to their courts, reduced the time and attention they could devote to their work. The prevailing feeling in the Constitutional Convention that judges of first instance should have designated places of residence must be considered applicable to judges-at-large, who resided in Manila. They could not permanently reside in districts out of Manila because by the very nature of their office they were to be assigned from time to time to different provinces of the Archipelago where their services are needed.  

Notwithstanding the constitutional directive for the legislature to provide by law the residences of judges of inferior courts, the legislature did not for some time see fit to provide official residences for judge-at-large and cadastral judges. In time, the party in power saw in these judges-at-large and cadastral judges, and specially in the peculiar provision that they shall hold court only in places to which they may be assigned by the Secretary of Justice, a means to influence the course of justice. Through the Secretary of Justice, a political appointee, friendly or sympathetic judges-at-large and cadastral judges were picked up for assignment to places where the administration or the party in power or the influential politicians desired cases (especially election cases) to be decided in one way or another. In time, judges-at-large and cadastral judges were not only assigned to specific provinces, but they were assigned to hear particular cases and authorized to decide these cases in Manila. In one notorious case once before this Court, a judge-at-large was made to abandon a heavy calendar of hearings to try a case in a nearby province presumably in the form and manner in which the Administration desired it to be conducted or decided, to the extreme inconvenience of the residents of the province where his calendar was previously fixed and to the just indignation of lovers of justice. (Montano vs. Mejia, G.R. No. L-6416.)

It has come to pass, therefore, that the offices of judges-at-large and cadastral judges, which were established for the prompt dispatch of cases, has become the avenue through which pernicious political influence has sought to corrupt the administration of justice. It can not be denied that it is this intolerable anomaly which Congress sought to remedy by Sec. 3, par. 2 of Republic Act No. 1186, although some legislators may have personal reasons of their own in supporting its passage. To the credit of the present Congress, let it be said that the disputed provision constitutes an act of relinquishment by the party in power of a strong political weapon which it could utilize to its own advantage.

As we see it the Act is a positive remedy seeking to eradicate a gangrenous evil that has been slowly but surely sapping public confidence in the administration of justice. Viewed from its purpose and aim, it cannot be said to have passed to legislate judges out, which would be an encroachment on the independence of the judiciary; it is rather the painful amputation of an anomalous and gangrenous appendage, through which politics had influenced the judiciary. It is the painful extraction of a tooth through which the germs of infection seek to poison the whole judicial body. Removal of said gangrenous appendage, or extraction of the infectious tooth, or the eradication of the root of the evil is not interference with judicial independence; it is freeing it of political influence, the cutting off of the avenue leading thereto, over which pernicious politics had passed to influence the administration of justice. To the judicial system it is indeed painful, but the operation may be likened unto situation covered by the following Biblical passage:

"And if thy hand, or foot scandalize thee, cut it off, and cast it from thee. It is better for thee to go into life mained or lame, than having two hands or two feet, to be cast into everlasting fire." (St. Matthew, chap. 18, v. 8).

This to my mind is not occasion when, in the words of Justice Laurel, we must let "the hammer fall." It is rather an occasion when we should not look for defects in the law, but seek its justification. We find such justification, if not in the words of the constitutional directive that the legislature fixes the residences of judges, at least in the reason or spirit of the other provision that judges shall be assigned to districts from which they may not be removed or taken away. ECSHAD

There is and there can be no question as to the existence of the power of Congress to abolish or to reorganize inferior courts. This power is expressly granted to Congress by the Constitution when it provided in section 1, Article VIII that the judicial power shall be vested in one Supreme Court and in "such inferior courts as may be established by law," or in section 2 of the same Article. But our Constitution also expressly guarantees that judges shall not be removed from office until they reach the age of seventy years, or become incapacitated to discharge the duties of their office (Sec. 9, Article VIII). It is these two conflicting concepts that we are called upon to apply in the case at bar.

As I understand it, the question at issue is not, May the legislature legislate judges of first instance out of office by a supposed act of judicial reorganization? That would be unfair to the legislature that enacted the provision and a distortion of the issue, for judges are not being eased out but their positions are being abolished and are not being filled by others. If that were the issue there would be no tenable side than the negative. The question should rather be stated thus: Has the legislature abused its power to reorganize courts of first instance whein 1 Seven justices say the law violates the constitution; four others decide to sustain it, and their view prevails. The opinions of seven members are in fact dissenting opinions.

When Republic Act No. 1186 took effect on June 19, 1954, the ten petitioners were presiding different courts of first instance, some as judges-at-large, others as cadastral judges. Shortly thereafter they were notified by the respondent Secretary of Justice that they had ceased to hold office by virtue of the provision of section 3 of said Act declaring "all the existing positions of Judges-at-large and Cadastral Judges are abolished." TAESDH

Petitioners contend that, in abolishing their positions and removing them, Congress and respondents unconstitutionally shortened their terms of office prescribed by the Constitution. Wherefore, they ask for declaration of invalidity of said section, and for judgment that their positions and offices still exist, with their corresponding right to exercise the functions thereof. They also request appropriate orders for payment of their compensation, and for other relief, invoking the organic provision that judges "shall hold office during good behaviour, until they reach the age of seventy years, or become incapacitated," 2 they affirm they have not been guilty of misconduct, have not reached 70 years and are physically capable to perform their duties.

For answer, the Solicitor General maintains that petitioners' right to act as judges had ceased with the extinction of their positions, Congress having the constitutional power to abolish inferior courts, including the positions of Judges-at-large and Cadastral judges. Commendably avoiding all issues as to misconduct, age or capacity, he maintains, as secondary proposition, that anyway the statute creating petitioners' positions violated the Constitution and established no judicial office.

The second defense will be taken up later. The first, in our opinion, is the most important.

Never in our history has such a number of judges of first instance been ousted thru a judicial reorganization. In the several court revamps heretofore affected, it was assumed generally that incumbent judges had to be retained, and they were either re-appointed, promoted or placed in other important government positions. To assure judicial independence there was widespread acquiescence in their privilege to retain their posts during good behaviour, or until they reached the age of 65 years, 3 irrespective of structural government changes, — motivated or not — by the tides of political fortune. Some — very few indeed — lost their positions; but on applying to the courts for relief asserting judicial security of tenure, they failed upon grounds other than Congressional power to ease them out. (Summers vs. Ozaeta, L-1534; Zandueta vs. De La Costa, 66 Phil., 615). This controversy brings the first issue squarely to the fore, because the petition may be granted only upon a showing of Congressional lack of power to sweep petitioners out of their posts.

It is necessary for the Court to interpret and apply the following Constitutional provisions:

". . . judicial power, shall be vested in one Supreme Court and in such inferior courts as may be established by law." (Art. VIII, sec. 1.)

". . . the Congress shall have the power to define, prescribe and apportion the jurisdiction of the various courts." (Art. VIII, sec. 2.)

"No judge appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court. . . ." (Art VIII, sec. 7.)

"The members of the Supreme Court and all judges of inferior courts shall hold office during good behaviour until they reach the age of seventy years or become incapacitated to discharge the duties of their office. They shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office." (Art. VIII, sec. 9.)

As already stated, petitioners argue that Republic Act 1186 particularly section 3, abridged the tenure vouchsafed to them by above section — none of them having become incapacitated, or attained seventy years or been guilty of misconduct. HEASaC

Respondents, on the other hand, assert that Congressional power to establish courts and apportion their jurisdiction 4 wherein the Bill of Rights impliedly denied the President's power to suspend the writ of habeas corpus in case of imminent danger of invasion, whereas a subsequent article, sec. 10 expressly authorized the President to suspend where there is imminent danger of invasion. We sustained the Executive's power, quoting with approval the following precedents:

"It is a general rule in the construction of writings, that, a general intent appearing, it shall control the particular intent; but this rule must sometimes give way, and effect must be given to a particular intent plainly expressed in one part of a constitution, though apparently opposed to a general intent deduced from other parts. Waren vs. Shuman, 5 Tex, 441. In Quick vs. Whitewater Township, 7 Ind., 570, it was said that if two provisions of a written constitution are irreconcilably repugnant, that which is last in order of time and in local position is to be preferred. In Guls, C. & S. F. Ry. Co. vs. Rambolt, 67 Tex, 654, 4 S. W., 356, this rule was recognized as a last report, but if the last provision is more comprehensive and specific it was held that is should be given effect on that ground."

"And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 765 at p. 763 it was said: where "It is a familiar rule of construction that, where two provisions of a written Constitution are repugnant to each other, that which is last in order of time and in local position is to be preferred. Quick vs. White Water Township, 7 Ind. 570; G., C. & E. Ry. Co. vs. Tambolt, 5 The fundamental provisions on the matter areDHIaTS

The abolition of the Court of Appeals after liberation was a war emergency measure, and the justices so understood. But in recognition of their interrupted tenure or because of it, the Government promoted many of them soon to the Supreme Court (Briones, Padilla, Tuason, Hontiveros, Bengzon). Others were appointed to important positions, (Enage, Generoso, Lopez Vito); and when the Court was recreated a year thereafter, the remaining available justices were re-appointed thereto (Montemayor, Alex Reyes, Torres). Imperial was a senator, and Sison was under indictment for collaboration. H. Reyes had reached seventy and M. Albert was already practicing law. 

The People's Court was, by the law of its own creation, a temporary organization.

thereby "coordinated and harmonized" as Justice Laurel suggested in his concurring opinion in Zandueta vs. De La Costa. To bring about reconciliations is the great work of jurists. (Cardozo, Paradoxes of Legal Science p. 6.)

This is no novel theory of local vintage. Many American precedents uphold it.

"However, when the Constitution ordains that a judge shall hold his office for a fixed term, the constitution governs, and the legislature has no power to alter his tenure, either by enlarging or shortening the term, directly or indirectly." (48 C. J. S., p. 969, citing cases from Kentucky, Massachusettes and Pennsylvania.)

In State vs. Friedley an act of the Legislature of Indiana abolished the fifth judicial circuit presided by William T. Friedley and attached its territory and business to the fourth judicial circuit presided by George Gibson. In a contest for the office between the two, Friedley invoked the constitutional provision that judges "shall hold office for six years". Gibson invoked the Legislature's constitutional power (sec. 169) to divide the State from time to time into judicial circuits. The Indiana Supreme Court by unanimous vote held the law unconstitutional for violating the judge's tenure of office. It said:

"It seems beyond the power of the legislature to legislate a judge and prosecuting attorney out of office, and if the legislature cannot, by a direct act, deprive them of their offices, neither can it do so by the indirect mode of abolishing their circuit."

"To construe this section (169) to mean that the legislature can, at its own will, abolish the circuit, and thus legislate the judge and prosecuting attorney out of office, in addition to being in direct conflict with the other provisions of our organic law, would also put the official life of every judge and every prosecuting attorney of the state at the mercy of the legislature. It would subject the judiciary to the legislative power, and utterly destroy all judicial independence. Judges and prosecutors would be at the whim or caprice of the senators and representatives, in their tenure of office." HSacEI

"It is not to be assumed that the framers of the constitution builded it so unwisely as to secure to a judge an office and its tenure . . . . for a period of six years, if he so long behave well, and by the same organic law intended that the general assembly might remove him, at its will, from the exercise of all the privileges and duties pertaining thereto, without a hearing, without a conviction for misconduct, under the guise of "from time to time dividing the state into judicial circuits".

"Such division may be exercised by the legislature where the act does not legislate judges and prosecutors out of their respective offices, but not otherwise. The general assembly may add to or may take from the territory constituting a circuit. It may create new circuits. It may abolish a circuit, if the act be made to take effect at, and not before, the expiration of the terms of office of the judge and prosecutor of such office, as constituted, at the time of the act." (Italic ours.)

"The case of State vs. Noble, 116 Ind., 350. 21 N.E. Rep., 244, fully establishes the independence of the judiciary. The legislature cannot extend or abridge term of an office, the tenure of which is fixed by the constitution. Howard vs. State, 10 Ind., 99. The case of Mose vs. Long, 04 Ind., 99, holds that the office of prosecuting attorney of a circuit court is one provided for by the constitution, which fixes the term of office at two years, and the legislature can neither abolish the office nor abridge the term thereof."

"In State vs. Johnson, 101 Ind., 223, it is decided by the court that the general assembly has the power, at its discretion, to divide a judicial circuit at any time during the terms of office of the judge and prosecuting attorney of such circuit, subject only to the restrictions that the legislature cannot, by any legislation, abridge the official terms of either of such officers, nor deprive either of them of a judicial circuit wherein he may serve out the constitutional term for which he was elected."

In Com. vs. Gamble, 62 Pa. St., 343 the Pennsylvania Legislature established the 29th judicial district by the act of February 26, 1868 and James Gamble was commissioned judge thereof. By the Pennsylvania Constitution he was entitled to continue in office ten years, if he shall behave himself well. By an act of March 16, 1869 the former act was repealed and the district was abolished. The Supreme Court of Pennsylvania sustained Judge Gamble's right to the office saying:

". . ., if the legislature could blot out a district, it could limit the duration of the commission granted to a less period than ten years, if it might so choose. That it cannot shorten the tenure of the office of a judge, as fixed by the constitution, is certain, and this ought to establish that it can pass no act to do by indirection that which may not be done directly." aDcETC

A unanimous opinion of the justices of the Massachusettes Supreme Court held that, as the Constitution gave judges tenure "during good behaviour" the general power of the Legislature (General Court) to abolish courts did not include authority to compel retirement of judges reaching the age of seventy. It explained,

"The tenure of office of judges as thus settled by the Constitution is imperative and final. It cannot be enlarged, limited, modified, altered or in any way affected by the General Court." (271 Mass., 575, 171 N. E. Rep., p. 240.)

Under a Constitutional power to "ordain and establish inferior courts" the Legislature has no power to change the term fixed by the same constitution for the judges thereof. (See State vs. Clark, 87 Conn., 537, 89 Atl., 172, 52 L. R. A. (N. S.), p. 912.)

The four-year term fixed by the Constitution "is beyond legislative change. It is a fixed guaranty." (See State vs. Thomas, 10 Kan. 191, Wilson vs. Shaw, 188 N. W., 943.)

Legislature cannot, by abolishing or changing judicial circuits, remove or legislate judges from office prior to expiration of their terms.

(State ex rel. Wasworth vs. Wright 5 N. E. (2d) 504, 211 Ind., 41.) (footnote 48 C. J. S., p. 975.)

"Where a city has been reincorporated, but its name, identity, and territorial limits remain the same, a justice of the peace cannot be legislated out of office by the new charter's provision reducing the number of justices, when the Constitution provides that a justice shall hold his office for four years and until his successor is elected and qualified. Gratopp vs. Van Epa (1897) 113 Mich. 590, 71 N. W. 1080." (Vol. 4, A. L. R. p. 211.)

"The office of police magistrate in cities of the second class having more than 5,000 and less than 25,000 inhabitants is created and the length of the term fixed by the Constitution. The Legislature cannot change the length of the term nor remove the incumbent by legislation before the expiration of his term." [Syllabus State ex rel. McDermott County Atty. vs. Reilly, 94, Neb. 232) 142 Rep. p. 923].

"In State vs. Stuht, 52 Neb. 209, 71 N. W. 941, the act criticized provided that the police magistrate elected in Omaha in 1897 should enter upon his term of office before the term of the then incumbent expired, thus abridging the term of the incumbent, and this was held the Legislature could not do, since the Constitution fixed the term of the incumbent at two years. It was because the Legislature could not shorten the term of the incumbent that the time fixed for the new term to begin was in violation of the Constitution, and not because the Constitution fixed definitely when each term shall begin." (142 N. W. Rep. p. 924). ETDaIC

(Other authorities mentioned in the petitioners' carefully prepared brief are omitted for the sake of brevity.)

Admittedly, section 9 Article VIII aims to preserve the independence of the judiciary. It assures judges that so long as they behave, they cannot be removed from office — no matter what party controls the Government — until they reach the age of seventy years or become incapacitated. To complete their independence from political control or pressure, it further assures them that their salaries cannot be diminished during their incumbency (Sec. 9). Hence it may be asked, of what consequence is the assurance of salary non-diminution, if anyway judges could be legislated out thru a court re-organization?

So much did our Constitutional Convention desire to stabilize judicial tenure that it overruled a motion to permit the transfer of judges from one district to another through a court reshuffle.

"The judiciary committee of three practically endorsed the recommendation of the Convention committee on judicial power on the matter, in the following provision:

'No judge who has been appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court.'

"This provision of the revised judiciary article was considered by the Convention on January 17, 1985."

"Delegate Bernabe de Guzman proposed an amendment to the effect that this provision should not be applicable to a reorganization of tribunals of justice or of districts; but the amendment was defeated easily without debate." (Aruego, Framing of the Philippine Constitution, Vol. 1, p. 513).

Now, therefore, having vetoed the transfer of judges through a re-organization, the Convention evidently could not have permitted the removal of judges through re-organization.

The principle of an independent judiciary, co-equal and co-important with the other two branches of the Government came to our shores with the American occupation. Yet the independence of judges — particularly of the inferior courts, was of slow growth, 3a until it received vigorous fertilization in the Borromeo precedent 4 wherein this Court in a bold stroke of judicial statesmanship spelled out of doubtful provisions the doctrine that a judge of First Instance may not without his consent be transferred by the Governor-General to another district, because such power to transfer could be a means to whip into line such judges as may defy superior official dictation. 

The gesture was well received, the inamovilidad de jueces was here to stay. Other decisions reaffirmed it. 5 And contemporaneous legislation expressly permitted removal of a justice of the peace "when his office" is "lawfully abolished or merged in the jurisdiction of some other justice" (Sec. 206 Rev. Adm. Code), whereas it impliedly prohibited such removal (by abolition) of judges of first instance, because without mentioning abolition or merger, it directed that they "shall serve until they reach the age of 65 years, subject to the transfer provided for or authorized in this Act" (from one district to another). (Sec. 148 Rev. Adm. Code.) HSacEI

And when the Constitution was adopted in 1935, the Government practice of retaining judges in judiciary reshuffles, the statute and the jurisprudence all combined to flower into section 9, which with section 7 assumed judges stability of tenure, so long as they behaved, until they reach seventy or become incapacitated.

Wherefore, if constitutions are "expounded in the light of conditions existing at the time of their adoption, the general spirit of the times and the prevailing sentiments among the people" (11 Am. Jur., 676-678) it should be easy to conclude, from the circumstances herein-above depicted, that the Convention did not contemplate — nay, it frowned on removal of judges of first instance thru abolition of their offices or re-organizations.

The Constitutional Convention wanted judges unafraid to loss their jobs or their salaries, unmoved and unswayed by any considerations, except the trepidations of the judicial balance. Professor Jose Aruego, a member of the Convention, wrote this:

"The Convention included in the Constitution provisions for helping secure the independence of the judiciary. By express provision of the same, the "members of the Supreme Court and all judges of inferior courts shall hold office during good behaviour, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office." Consequently, during good behaviour, they may not be legislated out of office by the law-making body nor removed by the Chief Executive for any reason and under the guise of any pretense whatsoever; they may stay in office until they reach the age of seventy years, or become incapacitated to discharge the duties of their office." (Aruego, The Framing of the Philippine Constitution, Vol. II pp. 718-719) (Italics ours.)

The Borromeo-Mariano case, memorable in Philippine judicial annals spearheaded perhaps the idea of stable tenure for our judges, with these words:

"Our conception of good judges has been, and is, of men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government. We are pleased to think of judges as of the type of the erudite Coke who, three centuries ago, was removed from office because when asked "if in the future he would delay a case at the King's order," replied: "I will do what becomes me as a judge." (Borromeo vs. Mariano, 41 Phil., p. 333.)

The paragraph comes from the pen of Mr. Justice Malcolm, who on other subsequent occasions insisted on permanency of judicial office-holders. This litigation now raises the question,

Shall we have judges of the type of Lord Coke? Or judges who, in his place, would have answered "I'll do what his Majesty pleases", judges who, afraid of ouster through a judiciary reshuffle, would rather serve the interests of the party in power or of the political boss, than the interests of justice?

As it is, the Judicial Department is feeble enough. Shall we render it feebler with judges precariously occupying their official seats? Judges performing their duties under the sword of Damocles of future judicial re-organizations? CScTED

It is argued that "there can be no better guaranty" for the independence of the judiciary . . . "than the God-given character and fitness of those appointed to the Bench." We agree, if the statement means nothing else. But if it infers that the other good guarantees for judicial independence provided for by the Constitution (life tenure etc.) may be discarded, we disagree. The inference would be just as illegitimate as if one theorized that the best guaranty for the independence of a country is the courage of its defenders, and therefore all fortifications, tanks, cannons and defense installations etc. may all be suppressed. At any rate the argument evades the issue: the inquiry is not which is the best guaranty, but whether the guaranty of life tenure has been broken on this occasion.

Contradicting petitioners' claim of legislature removal, or dismissal by Congressional action, respondents argue there was no removal from office because the office was abolished. a

However, the plain fact is, petitioners were judges of first instance on June 19, 1954, and because of Republic Act No. 1186 they ceased to be so. They lost their jobs thru the operation of a legislative enactment. They were ousted by Congressional direction, i.e., legislated out. 6 The effect is what counts. The medium — abolition of their office — makes no difference. "We test a rule by its results," (L-3054 and L-3050), as one amicus curiae pointed out.

Anyway there must be something fallacious in this method of argumentation. If petitioners had a five-year lease on a building and after one year the owner destroyed it, will said owner be absolved upon the allegation that petitioners have no rights because the building is gone? Respondents, of course, will differentiate by pointing to the contract, and citing the principle that an office is not a contract. And yet, does a constitutional promise of tenure entail a lesser obligation than a private contractual duty?

Call it re-organization, or legislation or removal or abolition, this law disregards the constitutional assurance that these judges, once appointed, shall hold office during good behaviour etc. For such breach they may complain, and they do complain.

The abolition of their offices was merely an indirect manner of removing these petitioners. Remember that on June 19, 1954, there were 107 judges of first instance, district judges, judges-at-large and cadastral judges (Rep. Act No. 296). 6a After the passage of Republic Act No. 1186 there were 114 positions of judges of first instance. There was no reduction — there was increase — in the number of judges, nor in the number of courts. The positions of Judges-at-Large and Cadastral Judges were eliminated; but they were in fact substituted or replaced by other positions of judges; or if you please, there was a mere change of designation from "Cadastral Judge or Judge-at-Large" to "district judge". Hence it should be ruled that as their positions had not been "abolished" de facto, but actually retained with another name, these petitioners are entitled to remain in the service. (Brillo vs. Enage, G.R. No. L-7115, March 30, 1954.) For it is not permissible to effect the removal of one judge thru the expediency of abolishing his office even as the office with same powers is created with another name. (Brillo vs. Enage, Malone vs. Williams, 118 Tenn. 391, Gibb's Case 4 A. L. R. p. 211). In this view of the picture, we believe, Congress could have, and should have — as suggested by Secretary Tuason during the hearings in Congres — directed in said Republic Act No. 1186 that "the present judges-at-large and cadastral judges shall become district judges presiding such districts as may be fixed by the President with the consent of the Commission on Appointments"; or by the Secretary of Justice, as originally proposed by Senator Laurel in connection with this same bill. Something similar was done before, 7 and it would not be objectionable as an encroachment on the President's prerogative of appointment, because such judges had already been appointed to the judiciary before the passage of the act, and the provision may be construed in the light of mere change of official designation plus increase in salary. As the Secretary of Justice remarked during the hearings of the House, these judges-at-large should have been appointed to the districts: DHEACI

"Mr. VELOSO

(1). But suppose the bill as now proposed intends to abolish the judges-at-large and cadastral judges, would you think that this bill is unconstitutional?

"SEC. TUASON.

Well, that is why I say, — in order to prevent the bill from being unconstitutional, the abolition must contain the proviso that these judges are not to be ousted, they are not to be re-appointed but they are to continue as district judges and their districts are to be determined by somebody or by the Department of Justice." (Transcript of hearing on March 17, 1954 of the Committee on Judiciary, House of Representatives.)"

That this act was intended to remove judges is attested by the following statement of Congressman Arturo Tolentino, co-author of the measure, and majority floor-leader, during the debates of the House:

"I am frank enough, Mr. Speaker, and I will not be hypocritical to say that in this bill we are not going to weed out undesirable judges. We are. That is the purpose of the bill. There are judges who are undesirable and must be weeded, and their places must be placed by good judges who, after having been appointed to a particular district cannot later be removed or transferred from one district to another. In other words, to eliminate a bad system, we are going to use this remedy." (Lawyers Journal, issued on July 31, 1954, page 357)

This suggests another line of thought. Abolition of their offices amounted to the petitioners' removal. As Congress has no constitutional power to remove judges by direct action, therefore it must be denied power to do indirectly what it could not do directly. Indeed, those who uphold this law would make the Constitution prescribe that judges "shall hold office during good behaviour, until they reach the age of seventy or become incapacitated or are removed by Congressional action or their offices or courts are abolished." 

Again, on the matter of removal, the Constitution having enumerated causes for cessation of judges, the principle "express mention implies exclusion of others" supports plaintiffs' side.

"Ordinarily the enumeration of specified matters in a constitutional provision is construed as an exclusion of matters not enumerated, unless a different intention appears." (16 C. J. S., Constitutional Law p. 61).

This leads to the allegation that the removal of petitioners was not intentional, and therefore no breach of the Constitution may be imputed to Congress. In the face of the end-product ouster — we may declare it was unintentional, if (1) Congress did not know cadastral judges and judges-at-large would be ousted or (2) knowing such consequence, Congress found it necessary to approve the law (as it is now) to fulfill its purposes. The first alternative would be contrary to the facts; it would even be unflattering to Congress, for it would imply they didn't know the contents of the bill. The second alternative cannot be true, because the objectives of the law could be carried out without shortening the judges' life-tenure, by directing their conversion into district judges or ordering that abolition of their respective positions shall be effective upon termination of their respective tenures. SaCDTA

Respondents' reply will probably be something of this tenor: Congress did not know the President would not re-appoint petitioners Granted, arguendo. But Congress knew the judges were eased out, by the letter of the law. Maybe it hoped they would be saved by re-appointment from the President. Now, when a man snoots another, could he plead lack of intent, because he expected the doctor would save his victim?

Far be it from us, to imply that Congress maliciously decreed the removal of judges. All we say is, it acted intentionally, with full knowledge, albeit in the belief it had constitutional power to act as it did.

But, the respondents, argue, had these petitioners been appointed district judges by the President after the passage of Republic Act 1186, they would not complain; wherefore, their grievance could not be against the passage of the act, but against their non-appointment, and one who has not been appointed has no cause of action. Clever piece of thinking, to be sure. However, except for the objected law, petitioners would still be judicial officers, at large or cadastral, but judges of first instance. They do not pretend to be district judges, nor seek to be promoted as district judges by presidential appointment.

At any rate this is no debate on who is responsible for their ouster, the President or the Congress. The stubborn fact stands out: owing to the statute in question, petitioners find themselves ejected from their judicial seats. They seek a remedy, because the fundamental law promised they shall hold office during good behaviour until they reach seventy.

Ubi jus, ibi remedium — the section of the statute causing their untimely cessation should be invalidated.

In this connection, the possibility has occurred to us of construing section 3 of Act 1186 as effective only upon the cadastral judges and judges-at-large vacating their respective positions either thru resignation or thru the causes enumerated by the Constitution. That would be mere interpretation, and as no declaration of invalidity is required, seven votes would suffice. However, we realized that such interpretation would be unjustified, because the law clearly contemplates immediate cessation of said officers, as evidenced by the provision for pension of those who are not retained by appointment as district judges; and it is more important to be right than to carry the day. Wherefore the constitutional issue has to be squarely met.

Our views on this question of abolition are not inconsistent with Manalang vs. Quitoriano, 50 Off. Gaz., p. 2515, wherein the Director of the Placement Bureau lost his position when it was reorganized into the National Employment Service, headed by a Commissioner. There the constitutional issue hinged upon the right of a civil service officer not to be "removed or suspended except for cause as provided by law". Contrary to what is believed in some quarters, judges have broader and stronger guarantees of tenure than ordinary civil servants. They have in addition the privilege to hold office "until he reaches 70 years of age, or becomes incapacitated". Besides, the underlying consideration must be borne in mind that Manalang belonged to the Executive Department, and because the President approved the law, no question of encroachment by one branch on the other could be apprehended or alleged. IcTEAD

Comments on Prevailing Opinion.

According to the prevailing opinion (of four justices) the respondents' position is sustained by one decision in Tennessee two decisions in New Jersey and one in Kansas, one in Alabama — plus Brillo vs. Enage of local concern. We are sorry to state that none of them should have misled our distinguished colleagues.

McCulley vs. State (Tenn) 53 S. W. Rep. 134, 46 L. R. A. 567 is a three-to-two decision. And the case is not persuasive here, because — unlike ours — the Tennessee Constitution explicitly permitted the Assembly to remove the judges for cause by two-thirds vote. (See page 135, 53 S. W. Rep.)

And one of the three justices sustaining the abolition-removal rested his vote on the express constitutional power of the legislature to remove for "cause", said justice (Wilkes) having found it to be good cause "that there is not sufficient business to require the retention in office of the official etc." (McCully vs. State, 53 S. W. Rep. at p. 153.) Such power of removal actually tipped the judicial balance in that Tennessee controversy.

The dissenting opinion of Chief Justice Snodgrass, forceful, erudite, and supported by authority, contains a detailed exposition of the history and importance of judicial independence, the struggles to establish it, the intention of the framers of the Constitution in providing for life-tenure of judges. It apparently failed to impress his fellow-members, because that Tennessee Court had previously acknowledged "that the independence of the judicial department (there) was only a fiction of law and that it could not exist without the assent of the Legislature" (McCulley vs. State, 53 S. W. Rep. at p. 167). But certainly his luminous dissent, if read carefully and patiently, should convince judges of democratic countries wherein judicial independence is not a fiction of law, but a reality to be cherished and treasured.

And yet, not everything is hopeless under Tennessee's legal system. Some decisions there before and after the McCulley precedent maintain the view that a statute is unconstitutional where it abolishes the office of the judge without abolishing the court over which the judge presided (State vs. Link, 111 S. W. Rep. [2d] p. 1024; State ex rel Bailey vs. Mabry, 178 S. W. Rep. [2d] 379).

Right here is where respondents' line of defense is decisively dented, because Republic Act 1186 did not abolish any court of first instance and yet it abolished the offices of several judges of first instance. Herein lies the pivotal feature of this debate. It should be emphasized that the signers of this dissent would find for petitioners principally upon this particular defect of the legislation at stake, coupled with the admitted circumstance that instead of reducing the number of judges the act increased it, with seven additional ones. aEcHCD

The two New Jersey cases are not conclusive, because the Constitution of that State — unlike ours — expressly authorized the Legislature to abolish courts and to remove judges. It says after authorizing the creation of lower courts,

". . . which inferior courts the Legislature may alter or abolish as the public good shall require". (See 37 Atl. Rep. p. 68.)

It has also provisions similar to Tennessee's about the removal of judges.

As to Brillo vs. Enage, precisely, it upholds judicial tenure against legislative ouster. There were some obiter dicta, which of course are not binding.

In Aikman vs. Edwards (Kan.) the Legislature transferred the countries of the 26th district to the thirteenth district thereby indirect abolishing the former. But the judges were not affected, because the act provided that "it should not be construed so as to deprive any judge of his salary". The case is no authority against petitioners.

In the Cherokee County case (Alabama) the Constitution there gave the Legislature express power to abolish any court, except the Supreme Court.

In a footnote at pages 91-92 of his work on Constitutional limitations (8th Ed. Vol. 1), Judge Cooley summarized briefly the law on this subject as follows:

"Where the legislature is empowered to remove judges for cause, but is required to give notice and opportunity to appear, this imports that the cause shall be one personal to the judge, and he cannot be removed merely to cut down expenses. But if his court is one which the legislature is authorized to ordain and establish the legislature may abolish the court, and the judge's office and salary will thereupon cease. McCulley vs. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567."

"That all the territory of one judicial district may be distributed among other districts or annexed to one district, and the judge thus deprived of office, see Aikman vs. Edwards, 55 Kan. 751, 42 Pac. 366, 30 L. R. A. 149; but this cannot be done where the judge's term of office is fixed by the Constitution. State vs. Friedley, 135 Ind. 119, 34 N. E. 872, 21 L. R. A. 634."

The above three cases were obviously the most important on the question at issue. As explained, McCulley is not conclusive and Aikman saved the salary of judges. Therefore Friedley, supported by other American decisions as hereinbefore demonstrated, should shape our resolution in this controversy. CSaIAc

Respondents in their second ground of defense maintain that as the positions of judges-at-large and cadastral judges are unconstitutional, their abolition gives rise to no cause of action. 

They cite section 7 of Article VIII 1 and argue that as such judges have no permanent residence and could be designated from province to province by the Secretary of Justice their positions "violate the spirit if not the letter" of said section and article.

In the first place, the principle seems to be undisputed that a law may not be declared unconstitutional for mere violation of "the spirit" of the Constitution. 2

In the second place, the section refers to district judges — not to other judges. If it be contended that the constitution implicitly contemplated district judged only, then positions of justices of the peace or justices of the Court of Appeals would be unconstitutional too. As a matter of fact, the wording of the section, "No judge appointed for a particular district" etc. allows the inference that there are judges not appointed for a particular district — like auxiliary judges or judges-at-large of which there were fifteen (Act 3107) at the time of the Convention, and of which the members of the Convention were necessarily cognizant.

Thirdly, as the fundamental objection is to their ambulatory character, the solution should be to stop such transferability — not to outlaw their offices.

Lastly, this ground of defense may not be upheld, unless approved by two-thirds of the Supreme Court, necessitating as it does, a declaration of unconstitutionality of a statute. In the absence of the necessary vote, the positions of judges-at-large and cadastral judges must be regarded valid to all intents and purposes.

And now, what is the effect of the votes denying relief to petitioners expressly upon the ground of unconstitutionality of their official positions? May a justice validly rest his vote in a given case upon his lone personal opinion of unconstitutionality of a statute?

Suppose a person is prosecuted for violation of the Import Control Law. The facts proven fall clearly within the statutory prohibition. Five justices vote to convict, but six justices, accepting the facts, vote to acquit upon the ground of unconstitutionality of the statute. Will the accused go to jail or will he be released? Remember there are six votes of acquittal; but six votes are not enough to declare a statute unconstitutional. The hypothesis opens up interesting avenues of thought . . .

Recapitulation.

To restate our position briefly:

a. The offices of judges-at-large and cadastral judges do not contravene the Constitution; CDaTAI

b. The Legislature's express power to establish courts inferior to the Supreme Court implies power to abolish courts so created;

c. Such implied power, however, may not be used to abridge the tenure of incumbent judges, except, perhaps, during war hostilities or other clear national emergency;

d. Even granting the power to abolish courts implies the power to abridge the tenure of judges during normal times, where no court is abolished or the number of judges is not decreased, the Constitutional tenure is violated by the abolition of some judge's offices and their removal;

e. As Republic Act 1186 did not abolish any court and did not reduce the number of judges, section 3 of the Act easing out herein petitioners is unconstitutional and void.

In reaching the above conclusions we have not overlooked the good intentions expressed by prominent legislators during the debates on the bill. They approved it, we understand, avowedly for a three-fold purpose: (a) to increase the compensation of judges; (b) to have only one kind of judges of equal category and salary; and (c) to do away with the rigodon de jueces. These are indeed praise-worthy objectives, which the judiciary sincerely appreciates. Yet the advantages brought about should not blind us to the ensuing dangerous encroachment on judicial independence. This independence should be defended at all cost, for it is written that impartial justice cannot be adequately administered unless judges perform their duties in an atmosphere of perfect freedom from the fear of losing their offices or their salaries or their districts so long as they obeyed the law and the bidding of their conscience.

Our vote is to grant the relief prayed for.

Pablo, Jugo, Concepcion, and J. B. L. Reyes, JJ., concur in this opinion of Mr. Justice Bengzon.

MONTEMAYOR, J., concurring:

I concur in the learned and exhaustive opinion of Mr. Justice Bengzon. I only want to emphasize and set in bolder relief certain aspects of the case, particularly the security of tenure of office of a judge and the stability of his position, which both go to maintain the independence of the judiciary. That independence is not only vital but also necessary and indispensable in a democratic and constitutional form of government, and the framers of the Constitution clearly realizing this, inserted in that instrument a provision fixing the tenure of office of a judge and forbidding the decrease of his salary. Not content with this, they even prescribed and defined the only causes for removal of a judge or his cessation in office. Only through his own misconduct, his incapacity or his attaining the age of 70, is he to lose said office. There is no other ground. It is clear, therefore, that the Legislature may not through the enactment of a law, add to the grounds of removal prescribed in the Constitution, such as the abolition of a judicial office through reorganization, which results in a judge ceasing in office. That is an indirect removal. aSTECA

Why did the Constitution or its framers so solicitously, and in detail provide for the security of tenure of judges and their removal only on certain specific grounds? The reason is not hard to find. It was to make the office and the person occupying it independent and free from all outside influence and pressure.

Compared to other public functions and duties, the dispensing of justice, besides being extremely important, is both delicate and singular. To sit in judgment over your fellowmen, pass upon their controversies involving their rights and fortunes, and in criminal cases determine their innocence or guilt, which decision directly affects and involves their freedom, their honor, even their lives, is no ordinary chore or business. It is a serious task, weighty, and fraught with grave responsibility and of far reaching effects, a task, earnest and solemn almost partaking of the divine. The framers of the Constitution naturally wanted the person exercising that judicial function to be absolutely impartial and independent minded so that the parties before him obtained and received justice based only on the merits of their claims and defenses, regardless of the power and influence of the parties and other people interested in the case. But realizing the imperfections and frailties of man and not trusting to his honesty and integrity alone, the Fathers of the Constitution erected, as it were, around the man who judges his fellowmen a wall of safeguards and restrictions, high and firm, in the form of security of judicial tenure and of a salary that cannot be decreased, assuring him that as long as he behaved, he could well afford to utterly disregard outside influences and pressure, even antagonize and defy those seeking to exert it, because they cannot do anything to him as regards his office and its emoluments. With that constitutional assurance and guarantee, a judge may well decide his cases with an eye single and only to their merits. He is assured that as long as he behaves, he may continue in office until he is incapacitated or reaches the age of 70. In other words, his continuance in office as a judge rests entirely in his own hands, on the passage of time, and in the hands of Divine Providence, the last two of which are beyond human control. Neither the Chief Executive nor the Legislature, not even the highest court of the land which may pass upon and revoke his actuation, can touch him. Under all these conditions and atmosphere, conducive to judicial impartiality, the parties in a case, in turn, may rest assured that however humble and lowly and poor they may be, and regardless of the wealth, power and influence of their adversaries, they may and would still receive justice.

A judicial post is not a position that is occupied by an incumbent, casually, indifferently or temporarily. Because of its stability and the fact that it is comparatively well-remunerated, one occupies it with considerations and in a spirit of permanence, intending to make its functions, his life work and to stay in it, until the age of retirement. As a rule, justices of the peace in the towns and even Judges of First Instance grow grey in office and carry on, until they reach the age limit. Lawyers and fiscals prepare for and aspire to the post of a judge of First Instance as a life career, with an eye to possible promotion to the Court of Appeals or to the Supreme Court. In other words, they, more often than not, are career men who intended and want to stay in the judiciary as long as they can. Naturally, they are much and vitally interested that their tenure of office be strictly and fully respected, maintained, and secured. The Constitution rightly and properly gives them this assurance. With this guarantee, they, as judges, are in a position to administer justice without fear or favor and dedicate themselves entirely to their judicial work. But the moment they have reason to believe and they are made to realize that although their salary cannot be decreased nor can they be removed from office during good behaviour, still, their posts can be abolished and they can be made to cease as judges, then that sense of security and independence is shattered. In such a situation, what assurance have the parties to a case before a judge that, in deciding it, he is not influenced by other factors besides the merits of the case? This, specially if one of the parties involved or his counsel, is in a position to sponsor and work for the enactment of a law abolishing his position. SDHTEC 

There can be nothing more destructive of the morale of judges and their sense of security and independence than the possibility or threat of their removal, not through their own fault and after legal processes, but by the indirect method of abolition of their posts by means of judicial reorganization. Such indirect removal brings to a rude and sudden end their life career, that which for many years they had patiently and through sacrifices been striving for and finally achieved. Under such circumstances, and in that precarious situation, some judges, thoroughly disillusioned, may resign and step out gracefully before being legislated out and notified by the Department of Justice that they have ceased in office, and so should vacate it, and consider the whole thing as a mess and a sorry business and rue the day that they aspired to and trained and worked for a judicial career. Others, determined to stay in the judiciary and unwilling to lose their posts without doing anything about it, may seek help, and approach those in a position to prevent or frustrate the threatened or impeding abolition of their posts, or failing in this, see to it that they are retained in the service or are absorbed and re-appointed in the new judicial set up. From then on, could we still say that there is security of judicial tenure, and that we have an independent judiciary?

There was a time in England when the judge held his judicial office at the pleasure of the King who appointed him. The result was that the judiciary was subservient to the Crown that made and unmade judges. Only with the establishment of the tenure of good behaviour was the independence of the judiciary achieved.

We can have no independent judiciary if judicial tenure may be shortened or destroyed, by legislative reorganization, however well-intentioned and well-meant. There is real and grave danger of the judiciary eventually being subservient to a Legislature that through abolition of judicial posts by means of a judicial reorganization can unmake judges. And how could a Judiciary, which, under a constitutional form of government, is supposed to act as a check against the Legislature for any violation of the Constitution, do so when such Judiciary is subservient to the Legislature it is supposed to check? To me, the legislative abolition of judicial positions resulting in the removal of judges, without said judges being absorbed in the new judicial set up or otherwise retained in the judiciary, is an open violation of the constitutional provision on the security of judicial tenure, and if allowed, would "toll the knell" of an independent judiciary. It would be pulling down the judicial officer from the high pedestal of independence and security on which the Constitution has placed him, — the pedestal from which he has been dispensing justice, above, unaffected by and free from the influences, prejudices, machinations and passions, raging below him.

It is claimed that, rather than the security of tenure of a judge, it is his honesty and integrity that is the best guarantee for the dispensing of real justice, and that so long as our judges are honest and upright, there is nothing to fear. We could admire such ingenuousness and naivete; but the framers of our Constitution, less naive and more practical-minded, apparently thought otherwise, and believing that judicial honesty and courage were not enough, proceeded to safeguard a judicial office with security of judicial tenure during good behaviour, the very thing which we are endeavoring to uphold and protect against what we believe, is a legislative interference and invasion.

A great jurist once said that a judge shall know everything about the case, but nothing about the parties. That, perhaps, was the reason or one of the reasons why Justice is symbolized by a lady holding the scales in one hand and the sword on the other, with a bandage over her eyes — meaning that to her the merits and only the merits of the case as weighed in the scales are everything, and the parties thereto are nothing, to be utterly disregarded and ignored. But if, as in the present case, judges are made to realize that they may be legislated out of office under the guise of a well-intentioned reorganization, could we blame the lady with the scales and the sword, if, as a measure of precaution and so as not to jeopardize her tenure of office, she would now and then peep through the bandage over her eyes and see if, in case of an adverse decision, any of the parties before her are in a position to work for a reorganization and eventual termination of her tenure of office or, in case of a favorable decision, to help frustrate the threatened reorganization or if carried out, to work for her retention in or reappoint to the judiciary in the new judicial set-up.

It is contended that if the Legislature by means of a law may abolish an executive office like the Placement Bureau, even if it results in the ousting of the head of said bureau (see the case of Manalang vs. Quitoriano, 50 Off. Gaz., p. 2515) there is no reason why the same Legislature may not by means of the Judiciary Act (Republic Act No. 1186), abolish the position of judges-at-large and cadastral judges even if by said abolition the incumbents were separated from the judiciary. But there is a vast difference. In the case of the abolition of the Placement Bureau, resulting in the ouster of its chief, the only constitutional provision protecting the tenure of office of a civil service employee like him is that he may not be removed except for cause as provided for by law (section 4, Article XII of the Constitution). Under said constitutional provisions, the Legislature may enact a law providing for causes for removal of a civil service official or employee; and the abolition of his office may properly be regarded as one of the causes of removal, separation and cessation in office. In the case of a judge, however, as I have already stated, the Constitution prescribes and defines the causes for removal or cessation in office of a judge, and the abolition of judicial office is not one of them. The provisions of the Constitution on this point are clear. "The members of the Supreme Court and all judges of inferior courts shall hold office during good behaviour until they reach the age of seventy years or become incapacitated to discharge the duties of their office." It does not contain a phrase such as "or until their office is abolished by the Legislature." And so, although the Legislature by enacting a law may ordinarily provide for the abolition of a judicial office, it may not provide that abolition as a cause for removal of a judicial incumbent. Otherwise, to what avail is the constitutional guarantee of non-diminution of salary and judicial tenure, to a judge, if the Congress by a stroke of the legislative pen, could sweep away his salary, tenure and all. IcDCaS

The present judicial reorganization under Republic Act 1186 has the effect of ousting 33 judges of first instance (18 as judges-at-large and 15 as cadastral judges). Without any fault on their part, without any charges of inefficiency, misconduct, corruption or incapacity, and before reaching the age limit, they are made to cease as judges. They were merely notified by the Department of Justice that they were to cease from their office on a certain day. If this right of unlimited and unrestricted judicial reorganization by the Legislature is allowed, what is to prevent Congress this year, even with the best of intentions, from effecting another judicial reorganization, say, converting the present District Courts into Circuit Courts and declaring the positions of the present 114 district judges abolished and requiring new appointments and confirmations to whatever number of circuit judges are created by the new reorganization law? Thereafter, what is to prevent the same Congress or the next Congress from effecting another judicial reorganization and converting the circuit courts already mentioned into say, Provincial Courts or Courts of Judicial Areas No. 1, No. 2, No. 3, etc., similar to the system of Military Areas for our Armed Forces, or any other judicial system that the Legislature may think of, and in each reorganization, abolishing the courts or offices to be reorganized and requiring new appointments and confirmations? Where would the security of judicial tenure and independence of the judiciary then be?

If that is the law, if judges may freely and at any time be legislated out by means of a reorganization, then we might as well expunge from the Constitution section 9, Art. VIII, as unnecessary, absurd and useless, nay, more than useless, because it is misleading and deceptive, giving judges a false sense of security and independence, and people, particularly parties in court, false hopes and expectations of receiving real justice in an independent judiciary which is really not independent, and from judges supposed to be unafraid and immune to influence or pressure, but who in reality have reason to be afraid to lose their office at any time the Legislature thinks up and enacts a judicial reorganization.

If that is the law, then the members of the Constitutional Convention have gravely blundered into building what they intended to be a permanent and lasting independent judiciary on the sands of the desert or of the foreshore, easy prey and subject to wind and wave. But to me that is not the law, or the way the constitutional provision should be interpreted. That could not be the result of the prolonged efforts and labors of those who wrote and signed that instrument. Properly interpreted I believe that thru section 9 of Article VIII, they really built an independent judiciary on solid rock that can withstand wind and tide, with judges who can afford to be independent minded and fearless because not even the most hostile Legislature or the strongest administration may touch, much less destroy their tenure of office. 

As already stated, the present reorganization resulted in the ouster of 33 judges-at-large and cadastral judges. If the purpose of the reorganization was merely to improve or correct an error in the judicial system, then the 33 judges could well have been retained without any new appointments because they could properly be absorbed and fitted into the new judiciary set-up. But if the purpose of the reorganization was to weed out and remove undesirable and corrupt judges, why confine the reorganization to judges-at-large and cadastral judges and leave untouched district judges? Does it mean or did the Legislature believe that corruption existed only among judges-at-large and cadastral judges? Even so, reorganization is neither the remedy nor the process provided by law for that purpose. Congress may not sit in judgment over judges and declare some of them innocent and others guilty, and the latter to be removed. The law expressly provides a procedure for the removal of judges. If accused of misconduct, proper charges should be filed against them and they will be accorded a chance to answer, and above all must be given their day in court to defend themselves before the person designated to investigate them and only if found guilty may they be removed, by the Chief of the Executive Department (President), not by the Legislature, and only upon the recommendation of the Supreme Court. cEATSI

It is also claimed that in the case of the 33 judges affected, particularly the 10 petitioners herein, there has been no removal from office because their positions were abolished, and so the incumbents cannot be said to have been removed from an office which no longer existed. That sounds very much like a landlord who, unable through due process of law, to remove or eject an undesirable tenant from a house being rented, proceeds to tear down the building from under, and around the hapless tenant, and later when charged with arbitrary and illegal ejection and removal of the tenant from the premises sophist like speciously argues that there could have been no ejectment or removal of the tenant from the house because there no longer was any house from which to eject or remove.

It is finally asserted and with earnestness, that the positions of judges-at-large and cadastral judges are without the provisions of the Constitution because the residences of the incumbents are not fixed by Congress as required under section 7, Article VIII; consequently, said position may be abolished freely and without any hindrance for the reason that Congress in abolishing them under Republic Act 1186, was merely correcting a sort of legislative error in having created such judicial positions without fixing the residences of their incumbents, and that the guarantee of judicial tenure is not extended to such judges without a fixed residence. I regret my inability to subscribe to this proposition. If the purpose was merely to correct the error of lack of residence, then, why not just fix the residence of each judge-at-large and cadastral judge and provide that as in the case of District Judges, he may not be sent or assigned to a district outside his residence to try cases, without the approval of the Supreme Court? Why penalize judges-at-large and cadastral judges with indirect removal and cessation in office for an error of the Legislature? If this may be legally done, then we would be sanctioning a judge being legislated out of office by the abolition of his post, not because of any fault on his part, but only because of the fault of the Legislature in having forgotten to fix his residence. That sounds neither just nor fair. But it is much more than that. Under this proposition, one who accepts a judicial office does so under a caveat, a sort of notice, caution or warning that if at any time, the Legislature or the courts find any constitutional error, flaw or imperfection in the creation of his office, then it may be summarily abolished because it does not enjoy the security of judicial tenure. In other words, he is expected to be a constitutional expert or specialist and at his peril, first determine the constitutionality of the law creating the position he is accepting, because if he is wrong, and said position is later found to suffer from some constitutional imperfection, he may lose it. In that case a person accepting a judicial position with all candor and confidence, still can never feel safe or secure in his office, unless perhaps he has friends to help him. It is that very feeling of uncertainty and insecurity that the Constitution has guarded against by means of the security of judicial tenure, so that a judge may always feel secure and independent and can afford to be fearless.

In one of the separate opinions in this case, it is asserted that in abolishing the posts of judges-at-large and cadastral judges, the Legislature was merely seeking a remedy for the anomalous situation of judges without any fixed residence being sent around to try specific cases, under which system pernicious politics is said to have influenced the administration of justice; that the abolition of judicial posts effected was merely the painful amputation of a gangrenous appendage which was poisoning the judicial system, not unsimilar to the cutting and casting off of the guilty hand or foot in the biblical reference. One can have no quarrel with the painful operation mentioned, but why put the pain on the judge guiltless of the anomaly, and dismember him when he and his person are without fault or sin? We should not confuse the judicial system with the judicial personnel. If there is to be a general repair or remodeling of the judicial house in order to remove all traps and hazards, if there is going to be a general house cleaning in order to remove the filth inside, by all means let us have it; but one is puzzled if not intrigued why after all these operations, the old tenant who had behaved well, paid his obligations religiously and observed the law, and who was never responsible for the hazards nor the filth removed is not kept in or restored to the house after the repair and house cleaning, but instead he is left in the street and a new tenant is installed in the house repaired and cleaned.

In conclusion I hold that the abolition of any judicial office or post which results in the ouster of a judge is illegal and unconstitutional because the Legislature cannot do something indirectly — removing a judge — which it cannot do directly. The only instance I can imagine wherein a judicial office or district court could be legally abolished resulting in the ouster of the incumbent is where such a district or territory disappears as a result of some seismic or volcanic eruption or upheaval and sinks into the sea and disappears, or where such district or territory is ceded to another nation or country as a result of war, in which case the judicial incumbent of the district having no territory or district over which to exercise his judicial functions may well resign, retire and give up his position which materially and physically has ceased to exist. But in such a case, the abolition of the office was not due to any act or will of his fellow men, but was due to force majeure and the act of God, and against this, there is no judicial remedy. DETACa

BAUTISTA ANGELO, J.:

This case involves a clash of two important provisions of our Constitution: one which gives to Congress the power to create, abolish, and reorganize our inferior courts, and the other which guarantees to the incumbents a definite tenure of office. The issue is of paramount importance for, irrespective of its effect on the parties affected, it may mean the consecration of the principle which underlies the independence of the judiciary or the opening of the door to congressional interference which, no matter how lofty its purpose, may spell its destruction. These two provisions are apparently conflicting or contradictory, but because the prevalence of one may mean the repudiation of the other — a situation not certainly intended by the framers of our Constitution — it is the bounden duty of this Court, by applying sound rules of statutory construction, to seek the way by which they could be harmonized and be given force and validity to accomplish the vital purpose which they intend to serve.

The issue requires an inquiry into the scope and meaning of the provisions of sections 1 and 9 of Article VIII of our Constitution. Section 1 provides that "The judicial power shall be vested the Supreme Court and in such inferior courts as may be established by law." Section 9, on the other hand, provides, among others, that "all judges of inferior courts shall hold office during good behavior, until they reach the age of 70 years, or become incapacitated to discharge the duties of their office." What is the meaning, extent, and scope of the power of Congress to establish inferior courts? Does it mean that the power to create carries with it the power to abolish, and if so may terminate the term of office of the incumbent judge contrary to the letter and spirit of our Constitution? When does the power to reorganize end and the tenure of office begin?

Three different theories had been advanced as regards the power of Congress to abolish an inferior court and terminate the tenure of office of the judge presiding over that court. Some American courts entertain the theory that Congress may abolish an inferior court because of the principle that the power to create carries with it the power to abolish, and that this power may be exercised without any restriction in the sense that, once the court is abolished, any unexpired term of the incumbent judge is deemed terminated (Cherokee County vs. Savage, 32 So. 2d., 803). The second theory is that although Congress may abolish an inferior court it can not however do so when its effect is to terminate the tenure of office of the incumbent judge because such tenure is guaranteed by the Constitution (Commonwealth vs. Gamble, 62 Pa., 343). And the third theory entertains the view that Congress may abolish a court and terminate the unexpired term of the judge provided that the abolition of the court is done in good faith. "If immediately after the office is abolished another office is created with substantially the same duties and a different individual is appointed, or if it otherwise appears that the office was abolished for personal or political reasons, the courts will intervene." (Garvey vs. Lowell, 199 Mass. 47, 85 N. E. 182, 127 A. S. R. 468; State vs. Eduards, 40 Mont. 287, 106 Pac. 695, 19 R. C. L. 236.) Which of these theories should be adopted by this Tribunal? 

The first theory is unsound because it destroys the independence of the judiciary and constitutes a direct attack against the tenure of office guaranteed by our Constitution. It is obnoxious because it places statutory courts at the whim and mercy of Congress. This theory subverts the foundation stone on which the stability of a constitutional form of government is based. It would spell the doom of democracy and mark the rise of oligarchy or other tyrannical forms of government. As chief Justice Snodgrass has aptly said, "The only argument for the preservation of the (judicial) system is its constitutional establishment over and against the power of the legislature to abolish it, when established, during the existence of any term. It is not a question of trusting the legislature not to do it; it is a question of its power to do it, against the positive provision that these courts must exist by the preservative clause vesting in them the jurisdiction when created. No other conclusion meets this difficulty, and no argument has been made or could be made which obviates it." (McCulley vs. State, 102 Tenn., 509, 53 So., 184, Dissenting Opinion.) HIETAc

The second theory, while it respects the tenure of office clause, it however suffers from the infirmity that Congress cannot abolish a court even if unnecessary, or its purpose has been accomplished, simply because of the barrier planted by the tenure of office. This is inimical to a sound and practical government for it would completely tie up the hands of Congress against constructive legislation. This is contrary to the principle that "where there is no court there cannot be any such office as judge of such courts," (Perkins vs. Corbin, 45 Alabama, 102) because the right to hold an office depends upon the existence of that office. This principles admits of no argument. It is axiomatic. In such a case, tenure of office would only be available as a defense if it is shown that the abolition of the office has been made for personal or political reasons. This would bring us to the consideration of the third theory.

This theory holds that the office of a judge may be abolished by the abolition of the court provided that the Office is abolished in good faith. This is the middle ground between the two theories. While it allows the termination of the term of office even if guaranteed by the Constitution, it however warns that that can only be done in good faith, or when necessary because the purpose of the office has ceased to exist. At times this step may be found necessary in the interest of good government, as in the cases of the Court of Appeals and the People's Court. These courts were created to fill an imperative need and when this was met they were abolished and the incumbent judges swept out of office. No one has lifted a finger pointing to the unconstitutionality of such action. These are instances of abolition of an office of a judge for a good and sound purpose. This power of Congress has been impliedly recognized in the case of Zandueta vs. De la Costa, 66 Phil., 615, wherein, although the majority opinion did not pass squarely upon the constitutionality of the Act reorganizing the courts of first instance, however, the concurring opinion of Justice Laurel categorically upheld the constitutionality of said reorganization Act.

"I am of the opinion that Commonwealth Act No. 145 in so far it reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and constitutional. This conclusion flows from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorically or otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of the Constitution vests in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tenure of all the judges. The principles embodied in these two sections of the same article of the Constitution must be coordinated and harmonized. A mere enunciation of a principle will not decide actual cases and controversies of every sort (Justice Holmes in Lochner vs. New York, 198 U.S., 45., 49 Law. ed. 937)."

In the recent case of Brillo vs. Enage, G.R. No. L-7115, promulgated on March 30, 1954, the same power has been upheld with regard to the reorganization of the positions of justices of the peace. In that case, this Court expressly recognized the right of Congress to abolish such positions regardless of the judicial tenure of the incumbent, although it declared that the ousted judge was entitled to the position because it found that there has been no actual abolition of the court but merely a change in name and increase in the salary of the judge. IDAaCc

"La segunda cuestion que el recurrido plantea es que la Carta de Tacloban ha abolido el puesto. Si efectivamente ha sido abolido el cargo, entonces ha quedado extinguido el derecho del recurrente a ocuparle y a cabrar el salario correspondiente. McCulley vs. State, 46 LRA 567. El derecho de un juez de desempeñarlo hasta los 70 años de edad o se incapacito no priva al Congreso de su facultad de abolir, fusionar o reorganizarjuzgados no constitucionales. Zandueta vs. De la Costa, 66 Phil. 615; 42 Am. Jur., Pub. Officer, 904-5"

The abolition of the office of the Director of the Placement Bureau is another instance of the power of Congress to abolish an office even if its tenure is guaranteed by our Constitution. In the case of Manalang vs. Quitoriano, et al., 50 Off. Gaz., 2515, April 30, 1954, petitioner claimed that he could not be legislated out of office except for cause because he was a civil service eligible and his tenure of office was protected by the Constitution, but this Court ruled him out holding that he cannot set up such defense because the office he was holding was abolished. The power of Congress to abolish an office has been upheld.

"This pretense cannot be sustained. To begin with, petitioner has never been Commissioner of the National Employment Service and, hence, he could not have been, and has not been, removed therefrom. Secondly, to remove an officer is to oust him from office before the expiration of his term. A removal implies that the office exists after the ouster. Such is not the case of petitioner herein, for Republic Act No. 761, expressly abolished the Placement Bureau, and, by implication, the office of director thereof, which, obviously, cannot exist without said bureau. By the abolition of the latter and of said office, the right thereto of its incumbent, petitioner herein, was necessarily extinguished thereby. Accordingly, the constitutional mandate to the effect that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law" (Art. XII, Sec. 4, Phil. Const.), is not in point, for there has been neither a removal nor a suspension of petitioner Manalang, but abolition of his former officer of Director of the Placement Bureau, which admittedly, is within the power of Congress to undertake by legislation."(See also Brillo vs. Enage, supra.)

The foregoing, in my opinion, constitute the most rational and practical interpretation of the two conflicting provisions of our Constitution above adverted to for, while their functions and limits are defined, the way is pointed out by which they could co-exist and harmonize without doing violence to one as against the other. But, has Congress exercised its power in line with this interpretation in enacting Section 3 of Republic Act No. 1186? More specifically, has Congress really and actually abolished the courts which petitioners herein were then presiding upon its approval? Is the abolition of the position of judges at large and cadastral judges a necessary consequence of the abolition of the courts which they were presiding, or is it its purpose merely to weed out their incumbents? Let us make a little disgression on the constitution of our judiciary.

In our government set-up, the judicial power in the Philippines is lodged in the following public officers: justices of the Supreme Court, justices of the Court of Appeals, judges of the courts of first instance, judges of the municipal courts and justices of peace courts. The judges of the courts of first instance, as may be noted from the different acts enacted by Congress, may be classified into district judges, judges-at-large, and cadastral judges. The judges who are appointed to a particular district and given permanent stations therein are called district judges. The judges who are assigned to hold court sessions in a judicial district by the Secretary of Justice for such period of time as he may fix are called judges-at-large. And those judges assigned by the Secretary of Justice to render duty in any judicial district but whose functions are limited to land and cadastral cases are called cadastral judges. But this classification is now merely nominal because they exercise the same general jurisdiction in the particular district in which they are assigned to try and decide all kinds of cases that are submitted to them. When presiding the court they are all considered as judges of the courts of first instance. They all exercise the same jurisdiction as prescribed in the Judiciary Act of 1948. Their difference if any lies in their mobility and in the salaries they receive. (People vs. Mata, 45 Off. Gaz., Supp. 5, p. 180; Alarcon vs. Kasilag, 40 Off. Gaz., Supp. 11, p. 203; Executive Order No. 395, paragraph 3). ASHaDT

Now, it should be here noted that the judicial system implanted in the Philippines since the American sovereignty is the district system of courts of record. Under this system, the Philippines was divided into several judicial districts and judges were appointed to render duty in said districts, whether they be district judges or otherwise named. At first, district judge, in the exercise of their jurisdiction, were assisted by auxiliary judges, but later the latter were replaced by judges-at-large. Still later, the positions of cadastral judges were created to try only land and cadastral cases, but later they were also given general jurisdiction. When Republic Act No. 296 was approved on June 17, 1948, known as the Judiciary Act of 1948, the Philippines was divided into 16 judicial districts and the offices of 74 district judges were created. Said Act also created 18 positions of judges-at-large and 15 positions of cadastral judges, thus making 107 all in all the judges of first instance. Then came Republic Act No. 1186, which simply increased the number of district judges to 114 and abolished the office of judges-at-large and cadastral judges, but did not add nor diminish the number of judicial districts already existing upon its approval. 

It is interesting to note that the number of judicial districts has always been less than the number of the judges assigned to render duty in them, and the approval of Republic Act No. 1186 did not have the effect of abolishing any of the courts in which said judges were presiding over. It can therefore be plainly seen that the enactment of Act No. 1186 merely has the effect of abolishing the classification of judges and not the courts they were then occupying. The positions of judges-at-large and cadastral judges were merely converted into district judges. Applying the principle we have upheld in the case of Brillo vs. Enage, supra, and the third theory which we have discussed above, the conclusion is inescapable that the elimination of the positions of judges-at-large and cadastral judges cannot be done if its purpose is to sweep out of office the herein petitioners because its effect would be an open infringement of the tenure of office clause guaranteed by our Constitution.

An objection that may be advanced in connection with the third theory is the argument that this Court cannot inquire into the intent and purpose of Congress in approving a legislative measure, nor dispute its propriety and wisdom upon the theory that Congress is in a better position to know the conditions of the country and the needs of its constituents. And this argument is predicated upon the principle of separation of powers. We can hardly argue against this proposition. It is sound and many good reasons based on public interest and sound policy justify it. But like any other rule it is not absolute application. Cases may arise where the intent of the law is patent and palpable that one need not go into the depth of legislative inquiry to determine its constitutionality, and when such case arises this Court cannot shirk its duty by setting itself behind the cloak of a mere technicality. It is its duty to make the hammer fall whoever gets hurt. Anyway, we are not wanting in legal justification. Mr. Cooley, in his work on Constitutional Limitations (2nd edition p. 65), says: "When the inquiry is directed to ascertaining the mischief designated to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory." And this Court has held that "courts can avail themselves of the actual proceedings of the legislative body to assist in the construction of a statute of doubtful import." (Palanca vs. City of Manila, 41 Phil., 125).

Let us now take up the issue raised by the Solicitor General that the creation of the positions of judges-at-large and cadastral judges is unconstitutional because it violates Article VIII, section 7 of our Constitution which provides: "No judge appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court." This proposition is advanced to justify the abolition of said positions and is predicated upon the objection that said judges being assignable to any district or province by the Secretary of Justice contravenes the letter and purpose of said constitutional mandate. I consider untenable this position of the Solicitor General. HTCSDE

In the first place, there is nothing in said provision which would limit the creation of judges of first instance to district judges. It merely provides that a judge appointed for a particular district shall not be designated or transferred to another without the approval of the Supreme Court. The only limitation refers to the residence of said judges whose determination is left to Congress. True, the determination of the residence of the judges-at-large and cadastral judges has been delegated by Section 53 of the Judiciary Act of 1948 to the Secretary of Justice, but in my opinion this does not constitute undue delegation of legislative power. Such matter does not involve rule-making or issuance of regulations having the force and effect of law, nor is it legislative in nature which, under a well known constitutional principle, cannot be delegated unless accompanied by a sufficient standard to canalize the action of the delegate and to avoid the grant of what Justice Cordozo has called a "roving commission." (Schecter vs. U.S., 295 U. S. 495). This is but a mere detail which has to do with the places where said judges have to be assigned which can be delegated for reasons of convenience and necessity.

In the second place, the positions of judges-at-large were introduced in our judiciary way back in 1902 by the Philippine Commission. On May 9, 1902, Act No. 396 was approved creating the positions of four judges-at-large. On September 5, 1903, the Commission enacted Act No. 867, amending certain sections of Act No. 136, but continuing the institution of judges-at-large. These positions were carried over in the various judicial acts approved subsequently, such as Acts 1345, 1708, 1952, and 2038.

On February 28, 1914, the Philippine legislature enacted Act No. 2347, known as the first Judicial Reorganization Law, wherein the positions of judges-at-large were continued but their names were changed to auxiliary judges. In 1916, the Administrative Code was passed and the provision regarding the positions of auxiliary judges were maintained (Act No. 2657, section 172). On March 10, 1917, the Administrative Code was revised, but the offices of auxiliary judges were reduced to five (Act No. 2711). On March 17, 1923, Act No. 3107, amending Section 157 of the Revised Administrative Code, was passed, increasing the number of auxiliary judges to fifteen. On December 5, 1932, Act No. 4007 was approved, amending the Revised Administrative Code without touching the provision regarding the auxiliary judges. The Constitution was approved by the constitutional convention on February 8, 1935.

After the adoption of the Philippine Constitution and barely one year after the establishment of the Commonwealth, the National Assembly enacted Commonwealth Act No. 145 wherein it reiterated section 157 of the Revised Administrative Code of 1917 which provided for the positions of judges-at-large. On August 19, 1938, the National Assembly approved Commonwealth Act No. 348, increasing the number of judges-at-large to twelve. On October 16, 1939, the National Assembly approved Commonwealth Act No. 504 creating for the first time the positions of fifteen cadastral judges. And on May 26, 1940, the National Assembly approved Commonwealth Act No. 545 wherein it affirmed the number of judges-at-large at 12 and cadastral judges at 15 but increased the number of district judges from 50 to 56. And after liberation, Congress approved Republic Act No. 296 increasing the number of district judges to 74, the number of judges-at-large to 18, and maintaining the same number of cadastral judges at 15. aHSTID

As may be seen, before the adoption of the Constitution, the position of judges at large, or auxiliary judges, who did not have permanent stations but who could be transferred from one province to another upon the designation of the Secretary of Justice, had been in existence for many years. The members of the constitutional convention, as this Court may take judicial notice of, were composed mainly of lawyers and many of them were members of the legislature which operated in the Philippines before and after the adoption of the Constitution. In drafting said Constitution, the members of the convention could not ignore, as they are presumed to know, the existence of said positions and in their deliberations must have borne in mind and duly weighed their propriety and importance in considering the provisions to be embodied in the Constitution as regards the judiciary or the administration of justice in the Philippines, and yet they did not provide anything therein which would prohibit the creation of the positions of judges-at-large or cadastral judges other than declaring that those appointed to a particular district cannot be designated or transferred to another without the approval of the Supreme Court. If that is the only provision they inserted in the Constitution and its framers said nothing in their discussions or deliberations about the practice long observed regarding judges-at-large or cadastral judges it is preposterous now to presume and much less contend that law which created said positions is violative of Article VIII, section 7 of our Constitution. It is therefore crystal clear that contemporary laws and executive practice surrounding the creation of the positions of judges-at-large and cadastral judges point unremittingly to the only conclusion compatible with sound rules of construction that the institution of said positions is not obnoxious, as contended, but rather in keeping with the presumptive will of the framers of our Constitution.

"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. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption, the general spirit of the times, and the prevailing sentiments among the people. Reference may be made to the historical facts relating to the original or political institutions of the community or to prior well-known practices and usages." (11 Am. Jur., Constitutional Law, 676-678).

Having reached the foregoing conclusion, it would seem that section 3 of the law under consideration which abolishes the positions of judges-at-large and cadastral judges is untenable if we consider the point of view that the same is not violative of our Constitution. If the institution of said positions is not obnoxious to our Constitution, as I have pointed out above, why then abolish them especially if they are responsive to a laudable purpose? While all these may be true, I am however of the opinion that their abolition and conversion into position of district judges which avowedly is the main aim of the present law can be justified considering the reasons that had been advanced in favor of the proposal. One of them is the desire to remain faithful to one of the underlying principles of our constitutional government — the principle of separation of powers. The circumstance that judges-at-large and cadastral judges are not assigned permanently to their respective judicial districts but are to be designated by the Secretary of Justice to any province or district gave rise to the obnoxious practice of "rigodon de jueces" which was condemned by this Court in the Case of Borromeo vs. Mariano, 41 Phil., 328. With such practice — the Court remarked — "A judge who had, by a decision, incurred the ill-will of an attorney, or official, could, by the insistence of the disgruntled party, be removed from one district, demoted and transferred to another district." He is placed at the whim and mercy of the appointing power, whose only alternative "to maintain his self-respect would be to vacate the office and leave the service." Such practice should indeed be avoided as it tends to destroy the independence of our inferior courts. This is an evil which should be remedied, and the present provision aims to provide for this remedy. Another reason which argues in favor of this provision is the power of Congress to reorganize the inferior courts with a view to promoting an efficient administration of justice. The elimination of these positions and their conversion into district judges can be properly accomplished under this constitutional power provided that the incumbent judges be not deprived of their tenure of office guaranteed to them by the Constitution. IEaHSD 

I am therefore of the opinion that section 3 of Republic Act No. 1186 can be maintained if this Court should declare that said provision should operate prospectively in the sense that Article 3 of said Act shall take effect when the present positions of judges-at-large and cadastral judges are left vacant either by the appointment of their incumbent to the positions of district judges created in said Act or upon their voluntary resignation or retirement form office. Only in this way we can properly harmonize the power of Congress to reorganize our inferior courts and the tenure of office guaranteed to our judges by our Constitution which is the foundation stone on which the independence of the judiciary is firmly predicated.

My stand, therefore, is: If section 3 of Republic Act No. 1186 should be interpreted as having the effect of sweeping the petitioners out of office, the same is void because it impairs their tenure of office as guaranteed by our Constitution.

Petition denied.

 

Footnotes

PADILLA, J.:

1.Section 9, Article VIII of the Constitution.

2.Section 7, supra.

BENGZON, J.:

1.No intent here to criticize the Convention. Obviously, it was cognizant of F. D. Roosevelt's allergy to five-to-four decisions of the U.S. Supreme Court nullifying important legislation; and to insure F. D. R.'s approval (plus other reasons) it included among the features of our Organic Act the two-thirds innovation.

2.Art. VIII, sec. 9.

*.Note from the Publisher: The term "whein" should read as "wherein".

3.Before the Constitution, 65 years was the retirement age.

*.Note from the Publisher: Copied verbatim from the official copy.

4.1952 Off. Gaz., p. 3392.

*.Note from the Publisher: The term "Tambolt" should read as "Rambolt".

5.Exceptions might be: actual war or some other clear national emergency. See State vs. Friedley, 135 Ind., 119; 34 N. E. Rep., 872 at p. 876.

3a.They were at first appointed to hold office during the pleasure of the Philippine Commission. (Act 136).

4.Borromeo vs. Mariano, 41 Phil., 322.

5.Concepcion vs. Paredes, 42 Phil., 599; Alberto vs. Nicolas, 51 Phil., 370.

a.Note from the publisher: Missing footnotes.

6.Judges "may not be legislated out of office." (Aruego, Framing of the Constitution, Vol. II p. 917.

6a.74 district judges, 18 judges-at-large, 15 cadastral judges. Story on the Constitution, criticizes this at p. 178 53 S. W. Rep.

7.Act 3911, section 4.

1.No judge appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court. . . . .

2."Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words." (Cooley, Constitutional Limitations, Vol. 1 p. 351. (8th Ed.).