EN BANC
G.R. No. L-30001 June 23, 1970
THE DIRECTOR OF PRISONS and THE EXECUTIVE SECRETARY, petitioners,
vs.
ANG CHO KIO @ ANG MING HUY and THE COURT OF APPEALS, respondents.
Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioners.
Norberto J. Quisumbing for respondents.
Separate Opinions
FERNANDO, J., concurring:
The opinion of the Court penned by Justice Zaldivar, both thorough and meticulous, is, to my mind, equally noteworthy for expressing with clarity and precision the governing principle that should govern the discharge of judicial functions. It has my full concurrence therefore. I would like, however, to add a few words to the subject in view of the significance attached to a matter so fundamental in character.
The basic premise, of course, is the decisive weight to be accorded the fundamental postulate of separation of powers. While the failure of the majority opinion of the respondent Court of Appeals to yield full obeisance to its implications insofar as the executive is concerned is brought to light in the opinion of Justice Zaldivar, I would on my part view it further as an unwarrant assumption by the judiciary of a role which under the Constitution is denied it. To be more precise, it is not for any occupant of any court to play the role of adviser to the Executive.
I entertain serious fears that if the rule were otherwise not only would there be an infringement of the separation of powers concept but the delicate and grave duty of the courts to assure compliance with constitutional mandates and maintain its supremacy as called for by the rule of law would be gravely endangered. Such a point of view I once had occasion to manifest in a concurring opinion. Thus: "For to go back to the concept of the rule of law, in the same way that the legislative and the executive branches are required to act strictly within the bounds of their competence, the judiciary, including this Court, is likewise restricted to its proper domain. The fact that on questions of law it has the final say makes it all the more imperative that in passing upon the question of whether or not it is called upon to act, it takes the utmost care that in assuring compliance with constitutional limitations, it does not, at the same time, ignore the limits of its own authority."1
What was said by Justice Malcolm, speaking for this Court in a 1932 opinion, comes to mind.2 Time has not impaired its validity; it has but served to confirm it.ℒαwρhi৷ Thus: "The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction by any other department by the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions."3
In support of the above view, Justice Malcolm made reference to the last opinion of Chief Justice Taney of the United States Supreme Court. This is the excerpt referred to: "Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. ... And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. ..."4
There is likewise the epochal opinion of Justice Cardozo, as Chief Judge of the New York Court of Appeals,5 when that Court nullified a section of a New York statute that would vest in a justice of its Supreme Court the power to investigate at the instance of its governor. His opinion explained why: "He is made the delegate of the Governor in aid of an executive act, the removal of a public officer. ... At the word of command he is to give over the work of judging, and set himself to other work, the work of probing and advising. His findings when made will have none of the authority of a judgment. To borrow Bacon's phrase, they will not 'give the rule or sentence.' They will not be preliminary or ancillary to any rule or sentence to be pronounced by the judiciary in any of its branches. They will be mere advice to the Governor, who may adopt them, or modify them, or reject them altogether. From the beginnings of our history, the principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfillment of judicial duties... The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed by turning the power to decide into a pallid opportunity to consult and recommend ...."
Such a principle in American law, Justice Cardozo could trace back to Hayburn's Case,6 a 1792 decision. He made mention of another authoritative precedent, this too coming from the pen of Chief Justice Taney in 1851, in United States v. Ferreira. 7 A provision of the Treaty of 1819 by virtue of which Florida was ceded by Spain to the United States was to the effect that it was incumbent on the latter to satisfy claims for injury by Spaniards whether in the armed forces or civilians due to the operations of the American army in Florida. In 1823 Congress passed an act to carry into execution this article of the Treaty. It was therein authorized for the judges of the superior courts established at St. Augustine and Pensacola, Florida, respectively, to receive and adjust all claims arising within their respective jurisdictions, agreeably to the above article of the Treaty. Decision favorable to claimants were to be reported by such judges to the Secretary of the Treasury, "who, on being satisfied that the same is just and equitable, within the provisions of the Treaty, shall pay the amount thereof to the person or persons in whose favor the said is adjudged."
According to Chief Justice Taney: "It is too evident for argument on the subject that such a tribunal is not a judicial one, and that the Act of Congress did not intend to make it one. The authority conferred on the respective judges was nothing more than that of a commissioner to adjust certain claims against the United States; and the office of judges, and their respective jurisdiction, are referred to in the law, merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends. The decision is not the judgment of a court of justice. It is the award of a Commissioner. The Act of 1834 calls it an award. And an appeal to this court from such a decision, by such an authority from the judgment of a court of record, would be an anomaly if the history of jurisprudence."
Nor was this the first time in the New York bench that Justice Cardozo, speaking for the Court, made such a pronouncement. 8 In holding not legally allowable the reference to the New York Court of Appeals by the Industrial Commission of New York, the question of whether or not it was authorized to require payment into the stale fund of certain unpaid death benefits, the distinguished jurist declared: "In that situation our duty is not doubtful. The function of the courts is to determine controversies between litigants. ... They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function. ... It is true that in England the custom of the Constitution makes the judges of the high court the assistants of the Lords, and requires them, upon the demand of the Lords to give 'consultative' opinions. But that custom is a survival of the days when the judge were members of the great council of the realm. In the United States no such duty attaches to the judicial office in the absence of express provision of the Constitution."
There could be no disputing the accuracy of the observation made by Justice Cardozo in the Richardson opinion as to the fatal infirmity that would infect the role of a judge as a counselor of the Executive in these words: "Centuries of common law tradition warn us with echoing impressiveness that this is not a judge's work." In that sense we are as one with the common-law although we cannot trace it that far back. Failure to adhere to it gives rise to a grave concern.
Moreover, I would assume that those of us entrusted with judicial responsibility could not be unaware that we may be laying ourselves open to the charge of presumptuousness. Considering that the exercise of judicial authority does not embrace the alien role of a presidential adviser, indictment of officiousness may be hard to repel. It is indefinitely worse if the advice thus gratuitously offered is ignored or disregarded. The loss of judicial prestige may be incalculable. Thereafter, there may be less than full respect for court decisions. It would impair the confidence in its ability to live up to its trust not only on the part of immediate parties to the litigation but of the general public as well. Even if the teaching of decided cases both here and in the Philippines is not as clear therefore, there should be, to say the least, the utmost reluctance on the part of any court to arrogate for itself such a prerogative, the exercise of which is fraught with possibilities of such undesirable character.
When it is borne in mind that no undue attention need be paid to such advice, which may prove to be ineffectual, even futile, with consequences far-from-flattering to the judiciary, the language of the then Professor Frankfurter used with reference to advisory opinions, although set in a different context, would not be inappropriate. They are "ghosts that slay." 9 There is no place for them in the law, not if respect be paid to a coordinate branch, the Executive, and if, to my mind a more important consideration, there be no deviation from what thus far has rightly been conceived to be the fitting and proper role of the judiciary.
Footnotes
1 Arula v. Espino, L-28949, June 23, 1969, 28 SCRA 540, 575.
2 Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, (1932).
3 Ibid, p. 605.
4 Ibid, p. 606 citing Gordon v. United States, 2 Wall. 561 (1864).
5 In re: Richardson, 160 NE 655 (1928).
6 2 Dall. 409.
7 13 How. 40. Cf. Gordon v. United States, 117 US 697 (1865); Matter of Sanborn, 148 US 222 (1893); Interstate Commerce Commission v. Brimson, 154 US 447 (1894); Muskrat v. United States, 219 US 346 (1911); Tutun v. United States, 270 US 738 (1926); Liberty Warehouse Co. v. Grannis, 273 US 70 (1927).
8 In re Workmen's Compensation Fund, 119 NE 1027 (1918).
9 A Note or Advisory Opinions 37 Harv. Law Review 1002, 1008 (1924).
The Lawphil Project - Arellano Law Foundation
