EN BANC

 

 

G.R. No. 180050 RODOLFO G. NAVARRO, VICTOR F. BERNAL, AND RENE O. MEDINA, Petitioners versus EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; SENATE OF THE PHILIPPINES, represented by the SENATE PRESIDENT; HOUSE OF REPRESENTATIVES, represented by the HOUSE SPEAKER; GOV. ROBERT ACE S. BARBERS, representing the Mother Province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Island, Respondents.

 

Promulgated:

April 12, 2011

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CONCURRING OPINION

 

ABAD, J.:

 

 

I fully concur in the resolution that Justice Antonio Eduardo Nachura wrote for the majority. I would want, however, to reply briefly to the somewhat harsh criticism hurled against the Court in connection with its action.

 

The Court is accused of flip-flopping in this case as in the others before it, specifically the case of the sixteen municipalities that Congress converted into cities. Since the Court is a collegial body, the implication is that its members or the majority collectively flip-flopped in their decisions.

 

But, as I said in my concurring opinion in the Courts April 12, 2011 resolution in the League of Cities case,[1] the charge is unfair, as it is baseless. The Court is not a living person whose decisions and actions are ruled by the whims of one mind. As a collegial body, the Court acts by consensus among its fifteen members.

 

In the League of Cities,[2] neither all the Justices nor most of them did a somersault as implicitly suggested. Congress passed a number of laws converting sixteen municipalities into cities. The League of Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities involved did not meet the P100 million minimum income requirement of the Local Government Code. For their part, the municipalities countered that their laws constituted valid legislative amendments of such requirement.

 

The Court originally voted in the case on November 18, 2008. A majority of six Justices voted to annul the laws, five members dissented, and four took no part (6-5-4). The lead of those who voted to annul the laws firmed up with an increase of 2 votes when the Court took up the motion for reconsideration of the sixteen municipalities on March 31, 2009. The vote was 7-5-2.

 

But when on April 28, 2009 the Court acted on the sixteen municipalities second motion for reconsideration, the vote resulted in a tie, 6-6-3. The Court was divided in its interpretation of this 6-6 result. One group argued that the failure of the minority to muster a majority vote had the effect of maintaining the Courts last ruling. Some argued, however, that since the Constitution required a majority vote for declaring laws passed by Congress unconstitutional, the new voting restored the constitutionality of the subject laws. When a re-voting took place on December 21, 2009 to clear up the issue, the result shifted in favor of upholding the constitutionality of the laws of the sixteen municipalities, 6-4-3 (2 vacancies), with the new majority voting to uphold the constitutionality of the laws that converted the sixteen municipalities into cities.

But when the Court voted on the motion for reconsideration of the losing League of Cities on August 24, 2010, the majority shifted anew on a vote of 7-6-2. The sixteen municipalities filed a motion for reconsideration of the new decision and voting took place on February 15, 2011, resulting in a vote of 7-6-2 in favor of again upholding the constitutionality of the laws of the sixteen municipalities.

 

To repeat what I said in my concurring opinion in the League of Cities,[3] those who say that the Court, acting through its members, flipped-flopped in the League of Cities case should consider the following:

 

One. The Justices did not on each occasion simply decide to change their minds. There were pending motions for reconsideration in the case and the Justices had a duty to vote on them on the dates the matters came up for decision.

 

The Court is no orchestra with its members playing one tune under the baton of a maestro. They bring with them a diversity of views, which is what the Constitution prizes, for it is this diversity that filters out blind or dictated conformity.

 

Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty stood by their original positions. They never reconsidered their views. Only three did so and not on the same occasion, showing no wholesale change of votes at any time.

 

Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the opposite proposition upon the second vote (flip), and revert to his first position upon the third (flop). Not one of the twenty-three Justices flipped-flopped.

 

Four. The three Justices who changed their votes did not do so in one direction. Justice Velasco changed his vote from a vote to annul to a vote to uphold; Justice Villarama from a vote to uphold to a vote to annul; and Justice Mendoza from a vote to annul to a vote to uphold. None of them flipped-flopped since the three never changed their votes afterwards.

 

Notably, no one can dispute the right of a judge, acting on a motion for reconsideration that the losing party files, to change his mind regarding the case. The rules are cognizant of the fact that human judges could err and that it would merely be fair and right for them to correct their perceived errors upon a motion for reconsideration. Even God, who had decided to destroy the Israelites for worshipping a golden calf, reconsidered after Moses stood in the gap for them.[4]

Five. Evidently, the voting in the League of Cities is not a case of massive flip-flopping by the Justices of the Court. Rather, it is a case of tiny shifts in the votes, occasioned by the consistently slender margin that one view held over the other. This reflected the nearly even soundness of the opposing advocacies of the contending sides.

 

Six. It did not help that in one year alone in 2009, seven Justices retired and were replaced by an equal number. It is such that the resulting change in the combinations of minds produced multiple shifts in the outcomes of the voting. No law or rule requires succeeding Justices to adopt the views of their predecessors. Indeed, preordained conformity is anathema to a democratic system.

 

In this Dinagat Islands case the vote changed when, acting on the intervention of a third party with genuine interest in the outcome of the case, the majority in the Court was persuaded to change its mind and uphold the act of Congress in creating the province. The previous voting was too close and it took the vote of just two Justices, changing their previous positions, to ensnare the victory from those who oppose the conversion of the Dinagat Islands into a province.

 

Neither the Court nor its Justices flip-flopped in this case. They did not take one position, later moved to the opposite position, and then reverted to the first. They merely exercised their right to reconsider an erroneous ruling.

 

The charge of flip-flopping is unfair.

 

ROBERTO A. ABAD

Associate Justice

 

 



[1] G.R, 176951, League of Cities, et al., vs. Commission on Elections, et al., April 12, 2011,

[2] Supra.

[3] Supra.

[4] Exodus 32:7-14