SEPARATE OPINION

CORONA, J.:

On July 4, 1946, the flag of the United States fluttered for the last time in our skies. That day ushered in a new period for the Philippine judiciary because, for the first time since 1521, judicial decisions in our country became entirely our own, free finally of the heavy influence of a colonial master and relieved of the “preferable” use of precedents set by US courts. Nevertheless, the vestiges of 50 years of American rule were not about to disappear so soon, nor so easily. The 1935 Constitution then in force carried many provisions lifted from the US Constitution. Today we face the prospects of a constitutional crisis at whose vortex lies the interpretation of certain provisions of that American-influenced Constitution.

A defining moment in history is upon us. The Court has to speak in response to that moment and in defense of the Constitution.

I humbly contribute this separate opinion as a chronicle of my thoughts during our deliberations on the petitions before us. Let it be a living testament, in the immortal words of the great Jesuit historian Horacio de la Costa, that in this particular quest for truth and justice, we in this Court “not only played in tune but managed here and there a brief but brilliant phrase.”

THE EXTRAORDINARY REMEDY OF IMPEACHMENT

IS INTENDED TO BE ONLY A FINAL OPTION

Incorporated in the 1987 Constitution are devices meant to prevent abuse by the three branches of government. One is the House of Representatives’ exclusive power of impeachment for the removal of impeachable officers[1] from their positions for violating the mandate that public office is a public trust.

Impeachment under the Philippine Constitution, as a remedy for serious political offenses against the people, runs parallel to that of the U.S. Constitution whose framers regarded it as a political weapon against executive tyranny. It was meant “to fend against the incapacity, negligence or perfidy of the Chief Magistrate.”[2] Even if an impeachable official enjoys immunity, he can still be removed in extreme cases to protect the public.[3] Because of its peculiar structure and purpose, impeachment proceedings are neither civil nor criminal:

James Wilson described impeachment as “confined to political characters, to political crimes and misdemeanors, and to political punishment.” According to Justice Joseph Story, in his Commentaries on the Constitution, in 1833, impeachment applied to offenses of a political character:

Not but (sic) that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well as those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.

The design of impeachment is to remove the impeachable officer from office, not to punish him. An impeachable act need not be criminal. That explains why the Constitution states that the officer removed shall nevertheless be subject to prosecution in an ordinary criminal case.[4]

Impeachment has been described as sui generis and an “exceptional method of removing exceptional public officials (that must be) exercised by the Congress with exceptional caution.”[5] Thus, it is directed only at an exclusive list of officials, providing for complex procedures, exclusive grounds and very stringent limitations. The implied constitutional caveat on impeachment is that Congress should use that awesome power only for protecting the welfare of the state and the people, and not merely the personal interests of a few.

There exists no doubt in my mind that the framers of the Constitution intended impeachment to be an instrument of last resort, a draconian measure to be exercised only when there are no other alternatives available. It was never meant to be a bargaining chip, much less a weapon for political leverage. Unsubstantiated allegations, mere suspicions of wrongdoing and other less than serious grounds, needless to state, preclude its invocation or exercise. According to constitutionalist Joaquin Bernas, S.J.:

for ‘graft and corruption’ and ‘betrayal of public trust’ to be grounds for impeachment, their concrete manner of commission must be of the same severity as ‘treason’ and ‘bribery,’ offenses that strike at the very heart of the life of the nation.[6]

A great deal of prudence should therefore be exercised not only to initiate but also to proceed with impeachment. Otherwise, the time intended for legislative work (the reason why the Senators and the Congressmen have been elected to the legislature in the first place) is shifted to the impeachment effort. Furthermore, since the impeachable officer accused is among the highest officials of the land, it is not only his reputation which is at stake but also the efficient performance of his governmental functions. There is no denying that the economy suffered a serious blow during the impeachment trial of former Joseph Estrada in 2001. Impeachment must therefore be gravely reflected upon on account of its potentially destructive impact and repercussions on the life of the nation.

JURISDICTION AND JUSTICIABILITY VS.

THE POLITICAL QUESTION DOCTRINE

The Court is vested power by the Constitution to rule on the constitutionality or legality of an act, even of a co-equal branch.

Article VIII, Section 4(2) of the Constitution states:

(2)     All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided 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.

The Constitution is the basic and paramount law to which all laws, rules and regulations must conform and to which all persons, including the highest officials of the land, must defer. Any act conflicting with the Constitution must be stricken down as all must bow to the mandate of this law. Expediency is not allowed to sap its strength nor greed for power permitted to debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of law by the pretenders to illegitimate power.[7]

While it is the judiciary which sees to it that the constitutional distribution of powers among the three departments of the government is respected and observed, by no means does this mean that it is superior to the other departments. The correct view is that, when the Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy but the supremacy of the Constitution.[8]

The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act, whether of the highest official or the lowest functionary, is a cornerstone of our democratic system. This is the rule of law. The three departments of government, each discharging the specific functions with which it has been entrusted, have no choice but to comply completely with it. Whatever limitations are imposed must be observed to the letter. Congress, whether the enactment of statutes or its internal rules of procedure, is not exempt from the restrictions on its authority. And the Court should be ready - not to overpower or subdue - but simply to remind the legislative or even the executive branch about what it can or cannot do under the Constitution. The power of judicial review is a logical corollary of the supremacy of the Constitution. It overrides any government measure that fails to live up to its mandate. Thereby there is a recognition of its being the supreme law.[9]

Article VIII, Section 1 of the Constitution provides:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Both the 1935 and the 1973 Constitutions did not have a similar provision with this unique character and magnitude of application. This expanded provision was introduced by Chief Justice Roberto C. Concepcion in the 1986 Constitutional Commission to preclude the Court from using the political question doctrine as a means to avoid having to make decisions simply because they may be too controversial, displeasing to the President or Congress, or inordinately unpopular. The framers of the 1987 Constitution believed that the unrestricted use of the political question doctrine allowed the Court during the Marcos years to conveniently steer clear of issues involving conflicts of governmental power or even cases where it could have been forced to examine and strike down the exercise of authoritarian control.

Accordingly, with the needed amendment, the Court is now enjoined by its mandate from refusing to invalidate an unauthorized assumption of power by invoking the political question doctrine. Judicial inquiry today covers matters which the Court, under previous Constitutions, would have normally left to the political departments to decide. In the case of Bondoc vs. Pineda,[10] the Court stressed:

But where the political departments exceed the parameters of their authority, then the Judiciary cannot simply bury its head ostrich-like in the sands of political question doctrine.

In fact, even political questions do not prohibit the exercise of the power of judicial review for we have already ruled that our responsibility to interpret the Constitution takes primacy over the political question doctrine. In this connection, we held in Coseteng vs. Mitra[11] that:

Even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.

The Court is never concerned with policy matters which, without doubt, are within the exclusive province of the political arms of government. The Court settles no policy issues and declares only what the law is and not what the law ought to be. Under our system of government, policy belongs to the domain of the political branches of government and of the people themselves as the repository of all state power.[12]

In the landmark case of Marbury vs. Madison,[13] penned by Chief Justice John Marshall, the U.S. Supreme Court explained the concept of judicial power and justiciable issues:

So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

And on the importance of our duty to interpret the Constitution, Marbury was emphatic:

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the court must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.[14]

The Court has the obligation to decide on the issues before us to preserve the hierarchy of laws and to maintain the supremacy of the rule of the Constitution over the rule of men.

In Calderon vs. Carale,[15] we held:

If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers.

Under the new definition of judicial power embodied in Article VIII, Section 1, courts of justice have not only the authority but also the duty to “settle actual controversies involving rights which are legally demandable and enforceable” and “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”

The Court can therefore, in certain situations provided in the Constitution itself, inquire into the acts of Congress and the President, though with great hesitation and prudence owing to mutual respect and comity. Among these situations, in so far as the pending petitions are concerned, are (1) issues involving constitutionality and (2) grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch of the government. These are the strongest reasons for the Court to exercise its jurisdiction over the pending cases before us.

JUDICIAL RESTRAINT OR

DERELICTION OF DUTY?

A side issue that has arisen with respect to this duty to resolve constitutional issues is the propriety of assuming jurisdiction because “one of our own is involved.” Some quarters have opined that this Court ought to exercise judicial restraint for a host of reasons, delicadeza included. According to them, since the Court’s own Chief Justice is involved, the Associate Justices should inhibit themselves to avoid any questions regarding their impartiality and neutrality.

I disagree. The Court should not evade its duty to decide the pending petitions because of its sworn responsibility as the guardian of the Constitution. To refuse cognizance of the present petitions merely because they indirectly concern the Chief Justice of this Court is to skirt the duty of dispensing fair and impartial justice. Furthermore, refusing to assume jurisdiction under these circumstances will run afoul of the great traditions of our democratic way of life and the very reason why this Court exists in the first place.

This is actually not the first time the Court will decide an issue involving itself. In the 1993 case of Philippine Judges Association vs. Prado,[16] we decided the constitutionality of Section 35 of RA 7354 which withdrew the franking privilege of the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts and the Land Registration Commission and its Registers of Deeds, along with certain other government offices. The Court ruled on the issue and found that the withdrawal was unconstitutional because it violated the equal protection clause. The Court said:

The Supreme Court is itself affected by these measures and is thus an interested party that should ordinarily not also be a judge at the same time. Under our system of government, however, it cannot inhibit itself and must rule upon the challenge, because no other office has the authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness.

xxx    xxx       xxx

We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While ruling against the discrimination in this case, we may ourselves be accused of similar discrimination through the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we are prepared to accept. As judges, we cannot even debate with our detractors. We can only decide the cases before us as the law imposes on us the duty to be fair and our own conscience gives us the light to be right (emphasis ours).

This Court has also ruled on the constitutionality of taxing the income of the Supreme Court Justices.[17] The Court recognized that it was faced by a “vexing challenge” since the issue affected all the members of the Court, including those who were sitting there at that time. Yet it still decided the issue, reasoning that “adjudication may not be declined because (a) [we] are not legally disqualified; (b) jurisdiction may not be renounced.” Also, this Court had the occasion to rule on the constitutionality of the presidential veto involving certain provisions of the General Appropriations Act of 1992 on the payment of adjusted pension of retired Supreme Court justices.[18]

Thus, vexing or not, as long as the issues involved are constitutional, the Court must resolve them for it to remain faithful to its role as the staunch champion and vanguard of the Constitution. At the center stage in the present petitions is the constitutionality of Rule V, Sections 16 and 17 of the Rules on Impeachment Proceedings of the House of Representatives and, by implication, the second impeachment complaint against Chief Justice Hilario G. Davide Jr. We have the legal and moral obligation to resolve these constitutional issues, regardless of who is involved. As pointed out by the eminent constitutionalist, Joaquin Bernas, S.J., jurisdiction is not mere power; it is a duty which, though vexatious, may not be renounced.

CONSTITUTIONALITY OF RULE V SECTIONS 16

and 17, AND THE SECOND IMPEACHMENT

COMPLAINT/THE TIME-BAR ISSUE

Rule V, Section 16 of the Rules on Impeachment Proceedings of the House of Representatives reads:

In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.

In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

Section 17 of the same impeachment rules provides:

Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official.

On the other hand, Article XI, Section 3(5) of the Constitution states:

No impeachment proceedings should be initiated against the same official more than once within a period of one year.

Simply stated, according to the rules of the House of Representatives, impeachment proceedings are deemed initiated if there is a finding by the House Committee on Justice that the verified complaint is sufficient in substance; or once the House itself affirms or overturns the finding of the Committee on Justice; or by the filing or endorsement before the Secretary General of the House of Representatives of a verified complaint or a resolution of impeachment by at least one-third of the Members of the House.

The aforesaid rules of impeachment of the House of Representatives proceed from its rule-making power on impeachment granted by the Constitution:

The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.[19]

The foregoing provision was provided for in the Constitution in the light of the exclusive power of the House of Representatives to initiate all cases of impeachment pursuant to Article XI, Section 3(1) of the said Constitution. But this exclusive power pertaining to the House of Representatives is subject to the limitations that no impeachment proceedings shall be initiated against the same official more than once within a period of one year under Section 3(5) of the same Article XI.

In the light of these provisions, were there two impeachment complaints[20] lodged against the Chief Justice within a period of one year? Considering the House of Representatives’ own interpretation of Article XI, Section 3(5) of the Constitution and the diametrically opposite stand of petitioners thereon, it becomes imperative for us to interpret these constitutional provisions, even to the extent of declaring the legislative act as invalid if it contravenes the fundamental law.

Article XI, Section 3(5) is explicit that no impeachment proceedings shall be initiated against the same official more than once within a period of one year. The question is: when are impeachment proceedings deemed initiated?

In Gold Greek Mining Corporation vs. Rodriguez[21], the Court ruled that the intent of the framers of the organic law and the people adopting it is a basic premise. Intent is the vital part, the heart, the soul and essence of the law and the guiding star in the interpretation thereof.[22] What it says, according to the text of the provision to be construed, compels acceptance and negates the power of the Court to alter it, based on the postulate that the framers and the people mean what they say.[23]

The initial proposal in the 1986 Constitutional Commission read:

A vote of at least one-third of all the Members of the House shall be necessary either to initiate impeachment proceedings, or to affirm a resolution of impeachment proceedings, or to affirm a resolution of impeachment by the committee or override its contrary resolution. The vote of each Member shall be recorded.

However, Commissioner Regalado Maambong[24] proposed the amendment which is now the existing provision:

A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution of the articles of impeachment of the committee or to override its contrary resolution. The vote of each member shall be recorded.

Notably, Commissioner Maambong’s proposal eliminated the clause “[a vote of at least one-third of all the Members of the House shall be necessary either] to initiate impeachment proceedings.” His point was that, pursuant to the rules and practice of the House of Representatives of the United States, impeachment is not “initiated” by the vote of the House but by the filing of the complaint. Commissioner Maambong’s amendment and explanation were approved by the Constitutional Commission without objection. No clearer authority exists on the meaning and intention of the framers of the Constitution.

The issuance of an interpretative rule, embodied in Rule V, Section 16 of the Rules on Impeachment Proceedings of the House of Representatives, vis-à-vis a self-executing provision of the Constitution, has therefore no basis, at least with respect to the term “initiate.” A careful reading of Article XI, Section 3(5) of the Constitution shows absolutely no necessity for an interpretative rule. The wording of the constitutional provision is so unequivocal and crystal-clear that it only calls for application and not interpretation.

I acknowledge that Article XI, Section 3(8) of the Constitution provides that the Congress shall promulgate its rules on impeachment. This is correct — provided such rules do not violate the Constitution.

JUDICIAL REVIEW OF CONGRESS’

POWER TO MAKE ITS RULES

Article XI, Section 3(1) of the Constitution provides:

The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

It is argued that because the Constitution uses the word “exclusive,” such power of Congress is beyond the scope of judicial inquiry. Impeachment proceedings are supposedly matters particularly and undividedly assigned to a co-equal and coordinate branch of government.

It must be recalled, however, that the President of the Republic of the Philippines under Article VII, Section 18 of the Constitution has the sole and exclusive power to declare martial law. Yet such power is still subject to judicial review:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision hereon within thirty days from its filing.

Furthermore, in Bondoc vs. Pineda, we assumed jurisdiction despite the fact that the electoral tribunal concerned was the “sole” judge of contests relating to elections, returns and qualifications of its members:

Since “a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld.” That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the 1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts “to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentalities of the Government.

The power and duty of the courts to nullify, in appropriate cases, the actions of the executive and legislative branches of the Government does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk “the irksome task” of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such person, as in this case. It is - “a plain exercise of the judicial power, that power vested in courts to enable them to administer justice according to the law x x x It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law.[25]

Thus, in the words of author Bernas, the words “exclusive” or “sole” in the Constitution should not be interpreted as “driving away the Supreme Court,” that is, prohibiting it from exercising its power of judicial review when necessary.

The House of Representatives may thus have the “exclusive” power to initiate impeachment cases but it has no exclusive power to expand the scope and meaning of the law in contravention of the Constitution.

While this Court cannot substitute its judgment for that of the House of Representatives, it may look into the question of whether such exercise has been made with grave abuse of discretion. A showing that plenary power is granted either department of government may not be an obstacle to judicial inquiry for the improvident exercise or abuse thereof may give rise to a justiciable controversy.[26]

The judiciary is deemed by most legal scholars as the weakest of the three departments of government. It is its power of judicial review that restores the equilibrium. In other words, while the executive and the legislative departments may have been wittingly or unwittingly made more powerful than the judiciary, the latter has, however, been given the power to check or rein in the unauthorized exercise of power by the other two.

CONGRESS’ IMPEACHMENT POWER AND

POWER OF THE PURSE VIS-À-VIS THE

POWERS OF THE COMMISSION ON AUDIT (COA)

AND THE JUDICIARY’S FISCAL AUTONOMY

One of the issues against the Chief Justice in the second impeachment complaint is the wisdom and legality of the allocation and utilization of the Judiciary Development Fund (JDF). We take judicial notice of the deluge of public discussions on this matter.

The second impeachment complaint charges the Chief Justice with alleged unlawful underpayment of the cost of living allowances of members and personnel of the judiciary and the unlawful disbursement of the JDF for certain infrastructure projects and acquisition of motor vehicles.

The JDF was established by PD 1949 in 1984. As stated in its preliminary clause, it was enacted to maintain the independence of the judiciary, review and upgrade the economic conditions of the members and personnel thereof, preserve and enhance its independence at all times and safeguard the integrity of its members, and authorize it, in the discharge of its functions and duties, to generate its own funds and resources to help augment its budgetary requirements and ensure the uplift of its members and personnel.

It is of public record that, while the judiciary is one of the three co-equal branches of government, it has consistently received less than 1% of the total annual appropriation of the entire bureaucracy.

As authorized by PD 1949, the judiciary augments its budgetary requirements through the JDF, which is in turn derived from, among others, the marginal increases in legal fees since 1984.

Section 1 of PD 1949 imposes the following percentage limits on the use of the JDF:

“That at least eighty percent (80%) of the Fund shall be used for cost of living allowances, and not more than twenty percent (20%) of the said Fund shall be used for office equipment and facilities of the Courts located where the legal fees are collected; Provided, further, That said allowances of the members and personnel of the Judiciary shall be distributed in proportion of their basic salaries; and, Provided, finally,  That bigger allowances may be granted to those receiving a basic salary of less than P1,000.00 a month.

Section 2 thereof grants to the Chief Justice the sole and exclusive power to authorize disbursements and expenditures of the JDF:

SECTION 2. The Chief Justice of the Supreme Court shall administer and allocate the Fund and shall have the sole exclusive power and duty to approve and authorize disbursements and expenditures of the Fund in accordance with the guidelines set in this Decree and its implementing rules and regulations. (Underscoring supplied).

Section 3 of the same law empowers the Commission on Audit (COA) to make a quarterly audit of the JDF:

SECTION 3. The amounts accruing to the Fund shall be deposited by the Chief Justice or his duly authorized representative in an authorized government depository bank or private bank owned or controlled by the Government, and the income or interest earned shall likewise form part of the Fund. The Commission on Audit through the Auditor of the Supreme Court or his duly authorized representative shall quarterly audit the receipts, revenues, uses, disbursements and expenditures of the Fund, and shall submit the appropriate report in writing to the Chairman of the Commission on Audit and to the Chief Justice of the Supreme Court, copy furnished the Presiding Appellate Justice of the Intermediate Appellate Court and all Executive Judges. (Underscoring supplied).

It is clear from PD 1949 that it is the COA, not Congress, that has the power to audit the disbursements of the JDF and determine if the same comply with the 80-20 ratio set by the law.

In the course of the House Committee on Justice’s investigation on the first impeachment complaint, the COA submitted to the said body a copy of its audit report, together with pertinent supporting documents, that the JDF was used and allocated strictly in accordance with PD 1949.

Because some congressmen disagreed with the COA report clearing the Chief Justice of any illegality or irregularity in the use and disbursement of the JDF, a second impeachment complaint was filed charging him with alleged “misuse of the JDF.” At this point, the question foremost in my mind is: what would be the basis of such charges if the COA itself already cleared the Chief Justice?

Aside from its statutory power under PD 1949 to audit the JDF, the COA alone has the constitutional power to audit and investigate all financial accounts of the government, including the JDF.

Article IX (D), Section 2 (1) and (2) of the Constitution empowers and obligates the COA as follows:

Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. Preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this Article to define the scope of its audit examination, establish the techniques and methods required therefore, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

Under the foregoing provisions, the COA alone has broad powers to examine and audit all forms of government revenues, examine and audit all forms of government expenditures, settle government accounts, define the scope and techniques for its own auditing procedures, promulgate accounting and auditing rules “including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures,” decide administrative cases involving expenditure of public funds, and to conduct post-audit authority over “constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution.” The provision on post-audit recognizes that there are certain government institutions whose operations might be hampered by pre-audit requirements.

Admittedly, Congress is vested with the tremendous power of the purse, traditionally recognized in the constitutional provision that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”[27] It comprehends both the power to generate money by taxation (the power to tax) and the power to spend it (the power to appropriate). The power to appropriate carries with it the power to specify the amount that may be spent and the purpose for which it may be spent.[28]

Congress’ power of the purse, however, can neither traverse on nor diminish the constitutional power of the COA to audit government revenues and expenditures.

Notably, even the expenditures of Congress itself are subject to review by the COA under Article VI, Section 20 of the Constitution:

Sec. 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expense incurred for each member. (Underscoring supplied).

The COA’s exclusive and comprehensive audit power cannot be impaired even by legislation because of the constitutional provision that no law shall be passed exempting any entity of the government or its subsidiary or any investment of public funds from COA jurisdiction.[29]

Neither can Congress dictate on the audit procedures to be followed by the COA under Article IX (D), Section 2 (2).

In sum, after Congress exercises its power to raise revenues and appropriate funds, the power to determine whether the money has been spent for the purpose for which it is allocated now belongs to the COA. Stated otherwise, it is only through the COA that the people can verify whether their money has been properly spent or not.[30]

As it is a basic postulate that no one is above the law, Congress, despite its tremendous power of the purse, should respect and uphold the judiciary’s fiscal autonomy and the COA’s exclusive power to audit it under the Constitution.

Not only is Congress precluded from usurping the COA’s power to audit the JDF, Congress is also bound to respect the wisdom of the judiciary in disbursing it. It is for this precise reason that, to strengthen the doctrine of separation of powers and judicial independence, Article VIII, Section 3 of the Constitution accords fiscal autonomy to the judiciary:

Sec. 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

In Bengzon vs. Drilon,[31] we explained the constitutional concept of fiscal autonomy:

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary,. . . contemplates a guarantee of full flexibility to allocate and utilize [its] resources with the wisdom and dispatch that [its] needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their function.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendation to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude.

The Judiciary. . . must have the independence and flexibility needed in the discharge of [its] constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision.

In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the judiciary is withheld. Pursuant to the Constitutional mandate, the judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriation law.

In essence, fiscal autonomy entails freedom from outside control and limitations, other than those provided by law. It is the freedom to allocate and utilize funds granted by law, in accordance with law and pursuant to the wisdom and dispatch its needs may require from time to time.

Wherefore, I vote to grant the petitions (1) for this Court to exercise its jurisdiction and power of judicial review immediately; (2) to declare Rule V, Sections 16 and 17 of the Rules on Impeachment Proceedings of the House of Representatives unconstitutional and (3) to declare the second impeachment complaint filed pursuant to such rules to be likewise unconstitutional.



[1] According to Section 2, Article XI of the 1987 Constitution, the impeachable officers are the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions and the Ombudsman.

[2] Antonio Tupas and Edcel Tupas, fUNDAMENTALS on Impeachment, 2001 ed., Quezon City, p. 6 [2001].

[3] Joaquin Bernas, Commentaries on the 1987 Constitution of the Philippines, Quezon City, p. pp. 1109-1110 [2003].

[4] Supra, Note 2, p. 7.

[5] Ibid., p. 12.

[6] Supra, Note 3, p. 1113.

[7] Cruz, PHILIPPINE POLITICAL LAW, 1996 ed., p. 12.

[8] Angara vs. Electoral Commission, 63 Phil. 139 [1936].

[9] Evardone vs. Comelec, 204 SCRA, 464 [1991].

[10] 201 SCRA 792 [1991].

[11] Coseteng vs. Mitra, 187 SCRA 377, 378 [1990].

[12] Valmonte vs. Belmonte, Jr., 170 SCRA 256 [1989].

[13] 1 Cranch 137 [1803].

[14] WILLIAM H. REHNQUIST, The Supreme Court, New York, p. 34 [2001], quoting Marbury vs. Madison.

[15] 208 SCRA 254 [1992], citing Endencia and Jugo vs. David, 93 Phil. 699.

[16] 227 SCRA 703 [1993].

[17] Perfecto vs. Meer, 85 Phil. 552 {1950].

[18] Bengzon vs. Drilon, 208 SCRA 133 [1992].

[19] Article XI, Section 3, 1987 Philippine Constitution.

[20] Dated June 2, 2003 and October 23, 2003.

[21] 66 Phil. 259 [11938].

[22] 50 Am Jur. 200.

[23] Luz vs. Secretary of the Department of Agrarian Reform, 192 SCRA 51 [1990].

[24] now Justice of the Court of Appeals.

[25] Bondoc vs. Pineda, 201 SCRA 792 [1991].

[26] supra.

[27] Article VI, Section 29 (1), 1987 Constitution.

[28] Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC FO THE PHILIPPINES: A COMMENTARY, 722 [1996].

[29] Article IX, Section 3, 1987 Constitution.

[30] Bernas, THE 1987 PHILIPPINE CONSTITUTION A REVIEWER-PRIMER [2003], 455.

[31] 208 SCRA 133 [1992].