Rule versus Principle

Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
January 4, 2011

Under the Constitution, may a rule defeat a principle? NO.

The Rule

1. The Constitution provides that all cases heard by the SC shall be

decided:

a) EN BANC - “with the concurrence of a majority of the Members who

actually took part in the deliberations on the issues in the case and voted
thereon.” (Sec. 4(2), ART. VIII)

b) In DIVISION - “with the concurrence of a majority of the Members who

actually took part in the deliberations on the issues in the case and voted
thereon, and in no case, without the concurrence of at least three of such
Members. When the required number is not obtained, the case shall be
decided en banc; Provided that no doctrine or principle of law laid down by
the court in a decision en banc or in division may be modified or reversed
except by the court sitting en banc.” (Sec. 4(3)3, ibid.)

Implementation by the SC

2. To implement the foregoing provisions, the Internal Rules of the SC

were issued, the material provisions of which read:

“Rule 12
Voting Requirements

SECTION. 1. Voting requirements. – (a) All decisions and actions in

Court en banc cases shall be made upon the concurrence of the majority of
the Members of the Court who actually took part in the deliberations on the
issue or issues involved and voted on them.

(b) All decisions and actions in Division cases shall be made upon the
concurrence of at least three Members of the Division who actually took part
in the deliberations on the issue or issues involved and voted on them.

SEC. 2. Tie voting in the Court en banc. – (a) In civil cases, including
special proceedings and special civil actions, where the Court en banc is
equally divided in opinion or the necessary majority vote cannot be had, the
Court shall deliberate on it anew. If after such deliberation still no decision

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 is reached, the Court shall, in an original action filed with it, dismiss the
case; in appealed cases, it shall affirm the judgment or order appealed from.

(b) In criminal cases, when the Court en banc is equally divided in

opinion or the necessary majority cannot be had, the Court shall deliberate
on it anew. If after such deliberation still no decision is reached, the Court
shall reverse the judgment of conviction of the lower court and acquit the
accused.

(c) When, in an administrative case against any of the Justices of the

appellate courts or any of the Judges of the trial courts, the imposable
penalty is dismissal and the Court en banc is equally divided in opinion or
the majority vote required by the Constitution for dismissal cannot be had,
the Court shall deliberate on the case anew. If after such deliberation still no
decision is reached, the Court shall dismiss the administrative case, unless a
majority vote decides to impose a lesser penalty.

(d) Where the Court en banc is equally divided in opinion or the

majority vote required by the Constitution for annulling any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation cannot be had, the
Court shall deliberate on the case anew. If after such deliberation still no
decision is reached, the Court shall deny the challenge to the
constitutionality of the act.

(e) In all matters incidental to the main action where the Court en
banc is equally divided in opinion, the relief sought shall be denied.

SEC. 3. Failure to obtain required votes in Division. – Where the

necessary majority of three votes is not obtained in a case in a Division, the
case shall be elevated to the Court en banc.

SEC. 4. Leaving a vote. – A Member who goes on leave or is unable to

attend the voting on any decision, resolution, or matter may leave his or her
vote in writing, addressed to the Chief Justice or the Division Chairperson,
and the vote shall be counted, provided that he or she took part in the
deliberation”

The Principle

3. Under the Constitution: “The Philippines is a democratic and republican

State. Sovereignty resides in the people and all government authority emanates
from them.” (Sec. 1, ART II)

Comments

4. The RULE in question is – SC cases shall be decided with the

concurrence of a majority of the Members who actually took part in the
deliberations on the issues in each case and voted thereon.

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 The PRINCIPLE is DEMOCRACY, which means the RULE OF
5.
MAJORITY.

6. WHAT IS MAJORITY? It means: “The greater number. The number

greater than half of any total.” (Black’s Law Dictionary; Perez v. De la Cruz , 27
SCRA 587)

7. The RULE appears to be an EXPERIMENTAL DEVIATION from

established constitutional standards of articulation.

a) Under the Constitution of the United States of America, the Federal

Supreme Court consists of 9 Members (Sec. 1, ART. III, in relation to
28 USC § 1). 5 votes constitute the MINIMUM MAJORITY to render
a decision (Bush v. Gore, December 12, 2000). It bears notice that
such minimum majority is based on the total number of 9 Justices.
However, it takes 6 Justices, or 2/3 of 9, to constitute a QUORUM
(par. 2, Rule 3, RULES OF THE SUPREME COURT OF THE
UNITED STATES)

b) Under the 1935 Philippine Constitution, the Supreme Court consists

of 11 Members (Sec. 10 ART. VIII), 6 votes constitute the MINIMUM
MAJORITY to render a decision (Sec. 9, R.A. 296, a.k.a. Judiciary
Act of 1948). It bears notice that such minimum majority is based on
the total number of 11 Justices. It takes 6 Justices to constitute a
QUORUM, except when the appealed judgment imposes the death
penalty, in which case the presence of 8 Justices, or more than 2/3
of 11, is needed to have a QUORUM. (ibid., TAÑADA and
FERNANDO, Constitution of the Philippines Annotated; 1949 Ed., p.
759)

c) Under the 1973 Philippine Constitution, the Supreme Court consists

of 15 Members (Par. 2, Sec. 2, ART. X). 8 votes constitute the
MINIMUM MAJORITY to render a decision, except that in order to
declare the UNCONSTITUTIONALITY of a treaty, executive
agreement, or law – there must be a vote by at least 10 Justices, or
2/3 of 15. (ibid.).

While the foregoing provisions are CLEAR and SPECIFIC as to the

MINIMUM MAJORITY for the SC to render a DECISION, the 1987 RULE is NOT.
In fact, the latter is AMBIGUOUS. When applied to cases heard by a DIVISION
of 3 or 5 Justices, the MINIMUM MAJORITY of 3 votes is CONSISTENT with the
cardinal principle of DEMOCRATIC RULE in relation to the total number of
Justices in the division, that is: (a) 3 out of 3, or (b) 3 out of 5. However, when
applied to cases heard by a DIVISION of 7 Justices, or by the Court en banc, the
MINIMUM MAJORITY is INCONSISTENT with the cardinal principle of

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DEMOCRATIC RULE in relation to the total number of Justices in the division or
the Banc, that is: (a) 3 out of 7, or (b) 5, 6, or 7 out of 15. Obviously, the solution
to the AMBIGUITY is JUDICIAL CONSTRUCTION that could reconcile the RULE
with the PRINCIPLE by harmonizing the rule with the objective MINIMUM
MAJORITY of: (a) 4 out of 7, and (b) 8 out of 15. To construe otherwise would be
to ridicule common sense by applying the MAJORITY of the MINIMUM
MAJORITY, which is actually the MINORITY. The mechanical application of the
1987 RULE thus defeats the principle of DEMOCRACY or MAJORITY by
creating the possibility of the RULE OF THE MINORITY.

WHAT IS THE RULE WHEN THERE IS A TIE OR THE REQUIRED

8.
NUMBER OF VOTES IS NOT OBTAINED?

First. In cases heard by a Division, the same shall be decided by the Court
en banc (Sec. 3, Rule 12, IRSC).

Second. In cases heard by the Court en banc, the rules in Section 2, Rule
12 of the INTERNAL RULES OF THE SUPREME COURT shall apply.

It is important to note at this point that in Fortich v. Corona, 312 SCRA 751,
at 758, the SC ruled that when there is a tie or the required number of votes is
not obtained, THERE IS NO DECISION. It seems clear the intrinsic merit of the
argument is self-evident.

9. WHAT IS THE MINIMUM MAJORITY FOR THE SC TO BE ABLE TO

RENDER A DECISION EN BANC? Eight. (People v. Alberca, 257 SCRA 613, at
640, June 26, 1996). According to the Court: “Since the votes of the five Justices
fall short of the majority of the 8 votes needed to affirm the sentence of death of
the trial court, the penalty of reclusion perpetua should be imposed” (ibid.). This
is clear recognition that a majority of 8 votes is necessary in a case heard by the
Court en banc. While such majority is qualified by the purpose to affirm the
imposition of the death penalty, the same necessarily constitutes an affirmation
of the necessity of a majority of 8 votes to render a decision en banc. Common
sense dictates that if it takes, at least, 8 votes TO AFFIRM, it ought to follow that
it should also take, at least, 8 votes TO REVERSE. To rule otherwise would be to
read into the Constitution a DISTINCTION that is not there. Moreover, the ruling
in Fortich v. Corona, supra, would seem to indicate, by extension of logic, that
unless there is a majority of 8 votes, there is NO DECISION to speak of.

10. Hence, if there is no majority of 8 votes MODIFYING or REVERSING

the appealed decision or matter subject of the motion for reconsideration, it
follows that the same had WITHSTOOD scrutiny by the SC, and, therefore,
should be deemed to STAND ON RECORD.

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 11. Thus, a 5, 6, or 7-vote acquittal, reversal, affirmation, and/or
modification by the Court en banc is NOT A DECISION.