EN BANC

 

G.R. No. 175352 DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, v. RICHARD J. GORDON, Respondent, PHILIPPINE NATIONAL RED CROSS, Movant-Intervenor.

 

Promulgated:

January 18, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

 

DISSENTING OPINION

 

CARPIO, J.:

 

I vote to deny the motions for reconsideration filed by Respondent Richard J. Gordon (respondent Gordon) and movant-intervenor Philippine National Red Cross (PNRC).

 

Respondent Gordon and the PNRC seek partial reconsideration of the Courts Decision dated 15 July 2009, declaring that Republic Act No. 95 (RA 95), insofar as it creates the PNRC as a private corporation and grants it corporate powers, is void for being unconstitutional. The Decision also declared that the Office of the Chairman of the PNRC is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution, which reads:

 

SEC. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

 

 

 

 

Respondent Gordon and the PNRC are seeking reconsideration of the portion of the Decision relating to the unconstitutionality of certain provisions of RA 95.

 

This case originated from a petition filed by petitioners, seeking to declare respondent Gordon as having forfeited his seat in the Senate when he accepted the chairmanship of the PNRC Board of Governors.

 

In the assailed Decision, this Court held that the PNRC is a private organization performing public functions. The Philippine government does not own or control the PNRC and neither the President nor the head of any department, agency, commission or board appoints the PNRC Chairman. Thus, the prohibition in Section 13, Article VI of the 1987 Constitution is not applicable to the office of the PNRC Chairman, which is not a government office or an office in a government-owned or controlled corporation.

 

Since the PNRC is a private corporation, the creation of the PNRC through a special charter is violative of the constitutional proscription against the creation of private corporations by special law. The creation of the PNRC by special charter on 22 March 1947 through RA 95 contravenes Section 7, Article XIV of the 1935 Constitution, as amended, which reads:

 

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the Government or any subdivision or instrumentality thereof.

 

 

 

 

 

 

 

 

This provision prohibiting Congress from creating private corporations, except by general law, is reiterated in the 19731 and 19872 Constitutions.

 

In its Motion for Partial Reconsideration, the PNRC maintains that the decision declaring unconstitutional certain provisions of RA 95 deprived the PNRC of its right to due process considering that the PNRC was not a party to the case. Furthermore, the PNRC states that the constitutionality of RA 95 was never an issue in the case. Similarly, respondent Gordon posits in his Motion for Clarification and Reconsideration that the Court should not have passed upon the constitutionality of RA 95 since such issue was not raised by the parties.

 

Generally, the Court will not pass upon a constitutional question unless such question is raised by the parties.3 However, as explained by the Court in Fabian v. Hon. Desierto,4 the rule that a challenge on constitutional grounds must be raised by a party to the case is not an inflexible rule. In the Fabian case, the issue of the constitutionality of Section 27 of Republic Act No. 67705 (RA 6770) was not presented as an issue by the parties. Nevertheless, the Court ruled that Section 27 of RA 6770, which provides for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, infringes on the constitutional proscription against laws increasing the appellate jurisdiction of the Supreme Court without its advice and consent.

In this case, the constitutional issue was inevitably thrust upon the Court upon its finding that the PNRC is a private corporation, whose creation by a special charter is proscribed by the Constitution. In view of the Courts finding that the PNRC is a private corporation, it was imperative for the Court to address the issue of the creation of the PNRC through a special charter. The Constitution prohibits the creation of a private corporation through a special law. The Court could not declare the PNRC a private corporation created by the special law RA 95 without running afoul of Section 16, Article XII of the 1987 Constitution. To declare the PNRC a private corporation necessarily meant declaring RA 95 unconstitutional. To declare the PNRC, a creation of RA 95, a private corporation without declaring RA 95 unconstitutional would mean that Congress can create a private corporation through a special law. This the Court could not do.

 

The fact that the constitutionality of RA 95 has not been questioned for more than sixty (60) years does not mean that it could no longer be declared unconstitutional. One is not estopped from assailing the validity of a law just because such law has been relied upon in the past and all that time has not been attacked as unconstitutional.6 Indeed, there is no prescription to declare a law unconstitutional. Thus, in the case of Moldex Realty, Inc. v. Housing and Land Use Regulatory Board,7 this Court held that constitutional challenge can be made anytime:

 

That the question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised later. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same. (Emphasis supplied)

 

 

More importantly, the Court granted the PNRCs motion to intervene and the PNRC then filed its Motion for Partial Reconsideration, in which the PNRC argued that its charter is valid and constitutional. Thus, the PNRC, the entity that is directly affected by the issue of the constitutionality of RA 95, is in law and in fact a party to this case, raising specifically the issue that its charter is valid and constitutional. Moreover, although the original parties did not raise as an issue the constitutionality of RA 95, they were still afforded the opportunity to be heard on this constitutional issue when they filed their respective motions for reconsideration.

 

In its Motion for Partial Reconsideration, the PNRC claims that the constitutional proscription against the creation of private corporations by special law is not applicable in this case since the PNRC was not created by Congress but by then President Ferdinand Marcos, who issued Presidential Decree No. 12648 (PD 1264) which repealed RA 95. The PNRC insists that PD 1264 repealed and superseded RA 95. The PNRC maintains that since PD 1264 was issued by President Marcos in the exercise of his legislative power during the martial law period pursuant to Proclamation 1081, then the constitutional prohibition does not apply. Respondent Gordon agrees with the position taken by the PNRC.

 

I disagree. Even if the PNRC derived its existence from PD 1264, still the constitutional prohibition will apply. President Marcos issued PD 1264 on 5 December 1977 during martial law period when the President assumed extensive legislative power. Such assumption of legislative power did not place President Marcos above the Constitution. President Marcos could not issue decrees or orders contrary to the provisions of the Constitution. The exercise of legislative power by President Marcos under martial law must still be in accordance with the Constitution because legislative power cannot be exercised in violation of the Constitution from which legislative power draws its existence. The limits on legislative power is explained by the Court in Government v. Springer,9 thus:

 

Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments of the same are limited and confined within the four wall of the constitution or the charter, and each department can only exercise such powers as are expressly given and such other powers as are necessarily implied from the given powers. The constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap. (Emphasis supplied)

 

The 1973 Constitution, as amended, was in force when President Marcos issued PD 1264. Under Section 1, Article VIII of the 1973 Constitution, legislative power is vested in the National Assembly. By virtue of Amendment No. 610 of the 1973 Constitution, the President was granted legislative power. Thus, under Amendment No. 6, President Marcos was granted concurrent legislative authority with the interim Batasang Pambansa.11 Considering that the legislative power of the interim Batasang Pambansa and the regular National Assembly is subject to the limitations imposed by the Constitution, then more so for the emergency legislative power granted to the President during the period of martial law. In fact, the Court has declared void several Presidential Decrees or provisions thereof for being unconstitutional.

In Demetria v. Alba,12 the Court declared void Paragraph 1 of Section 44 of PD 1177 for being unconstitutional since it empowers the President to indiscriminately transfer funds and unduly extends the privilege granted under Section 16(5), Article VIII of the 1973 Constitution. In Export Processing Zone Authority v. Judge Dulay,13 the Court held that PD 1533 is unconstitutional because it deprives the courts of their function of determining just compensation in eminent domain cases and eliminates the courts discretion to appoint commissioners pursuant to Rule 67 of the Rules of Court. In subsequent cases, similar provisions on just compensation found in expropriation laws such as PD 42, 76, 464, 794, 1224, 1259, 1313, and 1517 were also declared void and unconstitutional for the same reason and for being violative of due process.14 In Tuason v. Register of Deeds, Caloocan City,15 PD 293 was declared void and unconstitutional since it allows the President to exercise judicial function and to take property without due process and without compensation. In Manotok v. National Housing Authority,16 the Court held that PD 1669 and 1670, which expropriated certain properties, were void and unconstitutional for violating due process of law.

 

In this case, PD 1264 contravenes Section 4, Article XIV of the 1973 Constitution which provides that [t]he National Assembly shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the government or any subdivision or instrumentality thereof. This same prohibition is found in Section 16, Article XII of the present Constitution. Thus, just like RA 95, PD 1264 is also void insofar as it creates the PNRC as a private corporation.

 

The PNRC further submits that due to its peculiar nature, it should be considered as a private, neutral and separate entity independent of government control and supervision, but acting as an auxiliary to government when performing humanitarian functions, and specially created pursuant to the treaty obligations of the Philippines to the Geneva Conventions.17 Thus, the PNRC maintains that its structure is sui generis and that it is not strictly private in character since it performs certain governmental functions. The PNRC posits that its argument is reinforced by the Position Paper18 dated 7 December 2009 of the International Federation of Red Cross and Red Crescent Societies (International Federation), which reads in part:

 

A National Society PARTAKES OF A SUI GENERIS CHARACTER. It is a protected component of the Red Cross Movement under Articles 24 and 26 of the First Geneva Convention, especially in times of armed conflict. These provisions require that the staff of a National Society shall be respected and protected in all circumstances. Such protection is not ordinarily afforded by an international treaty to ordinary private entities or even non-governmental organizations (NGOs). This sui generis character is also emphasized by the Fourth Geneva Convention which holds that an Occupying Property cannot require any change in the personnel or structure of a National Society. National Societies are therefore organizations that are directly regulated by international humanitarian law, in contrast to other ordinary private entities, including NGOs.

 

x x x

 

Once recognized by its Government as an independent National Society auxiliary to the public authorities in humanitarian field, a National Society, if it fulfills the ten (10) conditions for recognition, can be recognized by the International Committee of the Red Cross and be admitted as member of the International Federation of the Red Cross and Red Crescent Societies. No other organization belongs to a world-wide Movement in which all Societies have equal status and share equal responsibilities and duties in helping each other. This is considered to be the essence of the Fundamental Principle of Universality.

 

Furthermore, the National Societies are considered to be auxiliaries to the public authorities in the humanitarian field. The concept of National Societies auxiliary to the public authorities was reaffirmed in Resolution 3 of the 30th International Conference of the Red Cross and Red Crescent, on 26-30 November 2007. This status, as you may see, is not only a positive and distinct feature of any organization, but it is a precondition of its existence and functioning as a member of the International Red Cross and Red Crescent Movement.

 

The auxiliary status of Red Cross Society means that it is at one and the same time a private institution and a public service organization because the very nature of its work implies cooperation with the authorities, a link with the State. In carrying out their major functions, Red Cross Societies give their humanitarian support to official bodies, in general having larger resources than the Societies, working towards comparable ends in a given sector.

 

This is also the essence of the Fundamental Principle of Independence. No other humanitarian organization gives such interpretation to its independence, although many claim that they are independent. No other organization has a duty to be its governments humanitarian partner while remaining independent.

 

The Movement places much importance on the Principle of Independence and the duty of the States Parties to the Geneva Conventions to respect the adherence by all the components of the Movement to the Fundamental Principles. Before it can be recognized by the International Committee, a National Society must have autonomous status which allows it to operate in conformity with the Fundamental Principles of the Movement.

 

Thus, in protecting the independence of the National Society in carrying out its humanitarian mission in a neutral and impartial manner, it is crucial that it must be free from any form of intervention from the government at the level of the internal organization of the National Society mainly its governance and management structure. (Boldfacing supplied. Underscoring in the original.)

 

 

All private charitable organizations are doing public service or activities that also constitute governmental functions.19 Hence, the PNRC cannot claim that it is sui generis just because it is a private organization performing certain public or governmental functions. That the PNRC is rendering public service does not exempt it from the constitutional prohibition against the creation of a private corporation through a special law since the PNRC is, admittedly, still a private organization. The express prohibition against the creation of private corporations by special charter under Section 16, Article XII of the 1987 Constitution cannot be disregarded just because a private corporation claims to be sui generis. The constitutional prohibition admits of no exception.

 

Even the International Federation specifies the nature of the National Red Cross Society as a private institution and a public service organization. Furthermore, it emphasizes the importance of maintaining and protecting the independence of the National Society, free from any form of intervention from the government particularly concerning its governance and management structure. Full independence means that the National Societies are prohibited from being owned or controlled by their host government or from becoming government instrumentalities as this would undermine their independence, neutrality, and autonomy.

Indeed, the PNRC, as a member National Society of the International Red Cross and Red Crescent Movement (Movement) must meet the stringent requirement of independence, autonomy, and neutrality in order to be recognized as a National Society by the International Committee of the Red Cross (ICRC). The conditions for recognition of National Societies are enumerated in Article 4 of the Statutes of the Movement, thus:

 

Article 4

 

Conditions for Recognition of National Societies

 

In order to be recognized in terms of Article 5, paragraph 2 b)20 as a National Society, the Society shall meet the following conditions:

 

1.      Be constituted on the territory of an independent State where the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field is in force.

2.      Be the only National Red Cross or Red Crescent Society of the said State and be directed by a central body which shall alone be competent to represent it in its dealings with other components of the Movement.

3.      Be duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field.

4.      Have an autonomous status which allows it to operate in conformity with the Fundamental Principles of the Movement.

5.      Use a name and distinctive emblem in conformity with the Geneva Conventions and their Additional Protocols.

6.      Be so organized as to be able to fulfil the tasks defined in its own statutes, including the preparation in peace time for its statutory tasks in case of armed conflict.

7.      Extend its activities to the entire territory of the State.

8.      Recruit its voluntary members and its staff without consideration of race, sex, class, religion or political opinions.

9.      Adhere to the present Statutes, share in the fellowship which unites the components of the Movement and cooperate with them.

10.  Respect the Fundamental Principles of the Movement and be guided in its work by the principles of international humanitarian law.21

The conditions for recognition of National Societies do not require that the State itself create the National Society through a special charter. The absence of such requirement is proper and necessary considering the Movements emphasis on the importance of maintaining the independence of the National Society, free from any form of intervention from the government. However, it is required that the National Society be officially recognized by the government of its country as auxiliary to the public authorities in the humanitarian field.

 

A decree granting official recognition to the National Society is essential in order to distinguish it from other charitable organizations in the country and to be entitled to the protection of the Geneva Conventions in the event of armed conflict.22 The content of the decree of recognition may vary from one country to another but it should explicitly specify:

 

1.      That the National Society is the countrys only Red Cross or Red Crescent organization;

2.      That it is autonomous in relation to the State;

3.      That it performs its activities in conformity with the Fundamental Principles; and

4.      The conditions governing the use of the emblem.23

 

Thus, there is no specific requirement for the creation of the National Society through a special charter. The State does not have the obligation to create the National Society, in our case, the PNRC. What is important is that the National Society is officially recognized by the government as auxiliary to the public authorities in the humanitarian services of the government. This the Philippine government can accomplish even without creating the PNRC through a special charter.

 

Besides, as auxiliaries in the humanitarian services of their host governments, the National Societies are subject to the laws of their respective countries.24 Thus, the National Societies are bound by the laws of their host countries and must submit to the Constitution of their respective host countries.

 

The Philippine Constitution prohibits Congress from creating private corporations except by general law. I agree with the PNRC that it is a private organization performing public functions. Precisely because it is a private organization, the PNRC charter whether it be RA 95 or PD 1264 is violative of the constitutional proscription against the creation of private corporations by special law. Nevertheless, keeping in mind the treaty obligations of the Philippines under the Geneva Conventions, the assailed Decision only held void those provisions of the PNRC charter which create PNRC as a private corporation or grant it corporate powers. The other provisions respecting the governments treaty obligations remain valid, thus:

 

The other provisions25 of the PNRC Charter remain valid as they can be considered as a recognition by the State that the unincorporated PNRC is the local National Society of the International Red Cross and Red Crescent Movement, and thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC Charter implement the Philippine Governments treaty obligations under Article 4(5) of the Statutes of the International Red Cross and Red Crescent Movement, which provides that to be recognized as a National Society, the Society must be duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field.26 (Emphasis supplied)

 

 

This Courts paramount duty is to faithfully apply the provisions of the Constitution to the present case. The Constitutional prohibition under Section 16, Article XII of the 1987 Constitution is clear, categorical, and absolute:

 

SEC. 16. The Congress, shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis supplied)

 

Since the constitutional prohibition admits of no exception, this Court has no recourse but to apply the prohibition to the present case. This Court has no power to make PNRC an exception to Section 16, Article XII of the 1987 Constitution.

 

The PNRC could either choose to remain unincorporated or it could adopt its own articles of incorporation and by-laws and incorporate under the Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.

 

Accordingly, I vote to DENY the Motions for Reconsideration.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

 

 

 

1Section 4, Article XIV of the 1973 Constitution reads:

SEC. 4. The National Assembly shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the Government or any subdivision or instrumentality thereof.

2Section 16, Article XII of the 1987 Constitution reads:

SEC. 16. The Congress, shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

3Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No. 149719, 21 June 2007, 525 SCRA 198.

4356 Phil. 787 (1998).

5Ombudsman Act of 1989.

6British American Tobacco v. Camacho, G.R. No. 163583, 20 August 2008, 562 SCRA 511.

7 G.R. No. 149719, 21 June 2007, 525 SCRA 198, 204.

8AMENDING REPUBLIC ACT NO. 95 (As amended by Republic Acts No. 855 and 6373). AN ACT TO INCORPORATE THE PHILIPPINE NATIONAL RED CROSS.

950 Phil. 259, 309 (1927).

10Amendment No. 6 reads:

Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instruction, which shall form part of the law of the land.

11Legaspi v. Minister of Finance, No. L-58289, 24 July 1982, 115 SCRA 418.

12232 Phil. 222 (1987).

13233 Phil. 313 (1987).

14Municipality of Talisay v. Ramirez, G.R. No. 77071, 22 March 1990, 183 SCRA 528; Belen v. Court of Appeals, 243 Phil. 443 (1988); Leyva v. Intermediate Appellate Court, 239 Phil.47 (1987); Sumulong v. Hon. Guerrero, 238 Phil. 462 (1987); Ignacio v. Judge Guerrero, 234 Phil. 364 (1987).

15241 Phil. 650 (1988).

16Nos. L-55166 and L-55167, 21 MAY 1987, 150 SCRA 89.

17PNRCs Motion for Partial Reconsideration, p. 17; rollo, p. 413. (Boldfacing supplied)

18Annex A. The Position Paper was written by Razia Essack-Kauaria, Director of Governance Support and Global Monitoring, International Federation of Red Cross and Red Crescent Societies.

19The following are some of the private charitable organizations in the Philippines: (1) CHILDHOPE Asia Philippines, Inc. - is registered in 1995 under the Securities and Exchange Commission and whose principal purpose is to advocate for the cause of street children [CHILDHOPE Asia Website, http://www.childhope.org.ph/about-us.html (visited 2 September 2010)]; (2) PATH Foundation Philippines, Inc. (PFPI) - is a private, charitable organization whose mission is to improve health and contribute to environmentally sustainable development, particularly in under-served areas of the Philippines. [PFPI Website, http://www.pfpi.org/about.html (visited 2 September 2010)]; (3) The Philippine Community Fund - is a registered charitable organization, whose mission is to permanently improve the quality of life for the poorest Filipino communities, through education, nutrition, health, medical and family enhancement programs, regardless of religion, race or political boundaries [The Philippine Community Fund Website, http://p-c-f.org/about_us/index.php (visited 2 September 2010)].

20Article 5, paragraph 2 b) states:

 

2. The role of the International Committee, in accordance with its Statutes, is in particular:

x x x

b) to recognize any newly established or reconstituted National Society, which fulfils the conditions for recognition set out in Article 4, and to notify other National Societies of such recognition.

21Statutes and Rules of Procedure of the International Red Cross and Red Crescent Movement, ICRC Publication, p. 9.

22The Fundamental Principles of the Red Cross and Red Crescent, ICRC Publication, p. 18.

23The Fundamental Principles of the Red Cross and Red Crescent, ICRC Publication, pp. 18-19.

24Discover the ICRC, ICRC Publication, p. 10.

25 The valid provisions are Sections 4(b) and (c), 14, 15, 16, and 17:

SEC. 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs, the Philippine National Red Cross shall:

x x x

b. Be exempt from payment of all duties, taxes, fees, and other charges of all kinds on all importations and purchases for its exclusive use, on donations for its disaster relief work and other Red Cross services, and in its benefits and fund raising drives all provisions of law to the contrary notwithstanding.

c. Be allotted by the Philippine Charity Sweepstakes Office one lottery draw yearly for the support of its disaster relief operations in addition to its existing lottery draws for the Blood Program.

SEC. 14. It shall be unlawful for any person to solicit, collect or receive money, materials, or property of any kind by falsely representing or pretending himself to be a member, agent or representative of the Philippine National Red Cross.

SEC. 15. The use of the name Red Cross is reserved exclusively to the Philippine National Red Cross and the use of the emblem of the red Greek cross on a white ground is reserved exclusively to the Philippine National Red Cross, medical services of the Armed Forces of the Philippines and such other medical facilities or other institutions as may be authorized by the Philippine National Red Cross as provided under Article 44 of the Geneva Conventions. It shall be unlawful for any other person or entity to use the words Red Cross or Geneva Cross or to use the emblem of the red Greek cross on a white ground or any designation, sign, or insignia constituting an imitation thereof for any purpose whatsoever.

 

SEC. 16. As used in this Decree, the term person shall include any legal person, group, or legal entity whatsoever nature, and any person violating any section of this Article shall, upon conviction therefore be liable to a fin[e] of not less than one thousand pesos or imprisonment for a term not exceeding one year, or both, at the discretion of the court, for each and every offense. In case the violation is committed by a corporation or association, the penalty shall devolve upon the president, director or any other officer responsible for such violation.

SEC. 17. All acts or parts of acts which are inconsistent with the provisions of this Decree are hereby repealed.

26Decision dated 15 July 2009, pp. 22-23.