PARDONING POWER OF THE PRESIDENT
G.R. No. 103567 December 4, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  informed the Court that appellant Ricky Mengote was, on the
vs.
FRANCISCO SALLE, JR. Y GERCILLA @ "KA NONOY," RICKY
MENGOTE Y CUNTADO @ "KA RICKY/KA LIZA/KA JUN," and
TEN JOHN DOES, accused.
RESOLUTION
DAVIDE, JR., J.:
For resolution is the enforceability of the conditional pardon granted
to accused-appellant Ricky Mengote during the pendency in this
Court of his appeal from his conviction by the trial court.
In the decision1 dated 18 November 1991 of Branch 88 of the
Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-
90-11835, the accused-appellants were found guilty beyond
reasonable doubt as co-principals of the compound crime of murder
and destructive arson and were each sentenced to suffer the
penalty of reclusion perpetua and to pay, jointly and severally,
an indemnity in the sum of P50,000.00 to the heirs of the
victim.2
The appellants seasonably filed their Notice of Appeal. On 24
March 1993, this Court accepted the appeal. On 6 January 1994,
however, appellant Francisco Salle, Jr. filed an Urgent Motion to
Withdraw Appeal. The Court then required his counsel, Atty. Ida May
La'o of the Free Legal Assistance Group (FLAG) to verify the
voluntariness of the aforesaid motion.
In her Manifestation with Motion to Withdraw Appeal, Atty. La'o
informed this Court that her verification disclosed that Salle signed
the motion without the assistance of counsel on his misimpression
that the motion was merely a bureaucratic requirement necessary for
his early release from the New Bilibid Prison (NBP) following the
grant of a conditional pardon by the President on 9 December 1993.
He was discharged from the NBP on 28 December 1993. She further
same dates, granted a conditional pardon and released from
confinement, and that he immediately left for his province
without consulting her. She then prays that this Court grant Salle's
motion to withdraw his appeal and consider it withdrawn upon his
acceptance of the conditional pardon.
Until now, Mengote has not filed a motion to withdraw his appeal.
In the resolution of 23 March 1994, this Court granted Salle's
motion to withdraw his appeal and considered this case closed
and terminated insofar as he is concerned.
On 3 June 1993, Assistant Director Jesus P. Villanueva of the
Bureau of Corrections submitted certified photocopies of the
conditional pardon granted separately to Salle3 and Mengote4 and of
their certificates of release.5 The said copies of the conditional
pardon state, among other things, that it is upon acceptance of the
pardon that the appellants will be released from confinement. But
there is nothing to show when the appellants accepted the pardon.
In its Comment of 17 August 1994, the Office of the Solicitor General
asserted that with their acceptance of the conditional pardon, the
appellants impliedly admitted their guilt and accepted their sentence,
and hence, the appeal should be dismissed.6
After taking into consideration Section 19, Article VII of the
Constitution which provides that the President may, except in cases
of impeachment or as otherwise provided in the Constitution, grant
pardon after conviction by final judgment, this Court resolved to
require.
1. The Office of the Solicitor General and the counsel for the
accused-appellants to submit, within thirty (30) days from notice
1
hereof, their respective memoranda on the issue of the enforceability
of the conditional pardon; and
2. The Presidential Committee for the Grant of Bail, Release or
Pardon to inform the Court, within ten (10) days from notice
hereof, why it recommended to the President the grant of the
conditional pardon despite the pendency of the appeal. 7
In a Comment submitted on behalf of the Presidential Committee for
the Grant of Bail, Release, or Pardon, Assistant Chief State
Prosecutor Nilo C. Mariano avers that the Secretariat assisting the
Committee has a standing agreement with the FLAG and other
human rights organizations that it will recommend to the Presidential
Committee for conditional pardon by the President of convicted
persons who may have been convicted of crimes against national
security and public order or of common crimes which appear to have
been committed in pursuit of their political objectives; and that where
the said convicted persons have pending appeals before the
appellate court, the lawyers of the said organizations, particularly the
FLAG, will take care of filing the appropriate motions for the
withdrawal of their appeal considering that presidential pardon may
be extended only to those serving sentence after final conviction.
Notwithstanding that agreement, before it recommends to the
Committee the grant of conditional pardon, the Secretariat also
checks with the Bureau of Corrections the carpeta or records of
recommendees whether they have pending appeals so that those
concerned may be properly advised to withdraw the same. Mariano
further contends that per information given to the Secretariat by
Assistant Director Villanueva, Mengote's carpeta or prison record
does not show that he has a pending appeal with the Court of
Appeals or the Supreme Court. For that reason, the Secretariat was
not able to advise those concerned to take appropriate steps for the
withdrawal of the appeal before it recommended to the Committee
the grant of conditional pardon in favor of Mengote. Mariano then
assures the Court that there was no intention on the part of the
Secretariat and the Committee to violate Section 19, Article VII of the
Constitution, and that what happened was a clear misappreciation of
facts due to the incomplete records of Mengote.
In its Memorandum filed for the Appellee on 15 December 1994, the
Office of the Solicitor General maintains that the conditional pardon
granted to appellant Mengote is unenforceable because the
judgment of conviction is not yet final in view of the pendency in this
Court of his appeal.
On the other hand, the FLAG, through Atty. La'o, submits that the
conditional pardon extended to Mengote is valid and enforceable.
Citing Monsanto vs. Factoran, Jr.,8 it argues that although Mengote
did not file a motion to withdraw the appeal, he was deemed to have
abandoned the appeal by his acceptance of the conditional pardon
which resulted in the finality of his conviction.
The pivotal issue thus raised is the enforceability of a pardon granted
to an accused during the pendency of his appeal from a judgment of
conviction by the trial court.
This calls for a review of the Philippine laws on presidential pardons.
We shall start with the Jones Law.9 Section 21 thereof provided in
part as follows:
Sec. 21. That the supreme executive power shall be vested in an
executive officer, whose official title shall be "The Governor-General
of the Philippine Islands.". . . He is hereby vested with the exclusive
power to grant pardons and reprieves and remit fines and forfeitures.
...
Then came the 1935 Constitution. Paragraph 6, Section 10, Article
VII thereof provided as follows:
(6) The President shall have the power to grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction, for all offenses, except in cases of impeachment, upon
such conditions and with such restrictions and limitations as he may
2
deem proper to impose. He shall have the power to grant amnesty
with the concurrence of the Congress.
This provision differed from that of the Jones Law in some respects.
Thus, in People vs. Vera, 10 this Court held:
Under the Jones Law, as at common law, pardon could be granted
any time after the commission of the offense, either before or after
conviction (Vide  Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil. 293). The Governor-General of the
Philippines was thus empowered, like the President of the United
States, to pardon a person before the facts of the case were fully
brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided
that the pardoning power can only be exercised "after conviction".
The requirement of after conviction  operated as one of the limitations
on the pardoning power of the President. Thus:
It should be observed that there are two limitations upon the exercise
of this constitutional prerogative by the Chief Executive, namely: (a)
that the power be exercised after conviction; and (b) that such power
does not extend to cases of impeachment. 11
The 1973 Constitution went further by providing that pardon could be
granted only after final conviction. Section 14 of Article IX thereof
reads as follows:
The Prime Minister may, except in cases of impeachment, grant
reprieves, commutations, and pardons, remit fines and
forfeitures, after final conviction, and, with the concurrence of the
National Assembly, grant amnesty. (emphasis supplied)
The 1981 amendments to the 1973 Constitution, however,
removed the limitation of final conviction, thereby bringing us
back to the aforementioned provision of the Jones Law. Section 11,
Article VII of the 1973 Constitution, as thus amended, reads:
The President may, except in cases of impeachment, grant
reprieves, commutations and pardons, remit fines and forfeitures
and, with the concurrence of the Batasang Pambansa, grant
amnesty.
But the said limitation was restored by the present Constitution.
Section 19, Article VII thereof reads as follows:
Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with the concurrence
of a majority of all the Members of the Congress. (emphasis
supplied)
Where the pardoning power is subject to the limitation of conviction,
it may be exercised at any time after conviction  even if the
judgment is on appeal. It is, of course, entirely different where the
requirement is " final conviction,  " as was mandated in the original
provision of Section 14, Article IX of the 1973 Constitution, or
"conviction by final judgment," as presently prescribed in Section
19, Article VII of the 1987 Constitution. In such a case, no pardon
may be extended before a judgment of conviction becomes final.
A judgment of conviction becomes final (a) when no appeal is
seasonably perfected, (b) when the accused commences to serve
the sentence, (c) when the right to appeal is expressly waived in
writing, except where the death penalty was imposed by the trial
court, and (d) when the accused applies for probation, thereby
waiving his right to appeal. 12 Where the judgment of conviction is
still pending appeal and has not yet therefore attained finality, as in
the instant case, executive clemency may not yet be granted to the
appellant.
3
We are not, however, unmindful of the ruling of this Court in People
vs. Crisola 13 that the grant of executive clemency during the
pendency of the appeal serves to put an end to the appeal. Thus:
The commutation of the penalty is impressed with legal significance.
That is an exercise of executive clemency embraced in the
pardoning power. According to the Constitution: "The President may,
except in cases of impeachment, grant reprieves, commutations and
pardons, remit fines and forfeitures and, with the concurrence of the
Batasang Pambansa, grant amnesty." Once granted, it is binding
and effective. It serves to put an end to this appeal.
It must, nevertheless, be noted that the constitutional provision
quoted is that of the 1973 Constitution, as amended, which
authorized the exercise of the pardoning power at anytime, either
before or after conviction. Also, in Monsanto vs. Factoran, 14 this
Court stated that the acceptance of a pardon amounts to an
abandonment of an appeal, rendering the conviction final; thus:
The 1981 amendments had deleted the earlier rule that clemency
could be extended only upon final conviction, implying that clemency
could be given even before conviction. Thus, petitioner's
unconditional pardon was granted even as her appeal was
pending in the High Court. It is worth mentioning that under the
1987 Constitution, the former limitation of final conviction was
restored. But be that as it may, it is our view that in the present
case, it is not material when the pardon was bestowed, whether
before or after conviction, for the result would still be the same.
Having accepted the pardon, petitioner is deemed to have
abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
This statement should not be taken as a guiding rule for it is nothing
but an orbiter dictum. Moreover, the pardon involved therein was
extended on 17 December 1984 or under the regime of Section 11,
Article VII of the 1973 Constitution, as amended, which allowed the
grant of pardon either before or after conviction.
The reason the Constitutional Commission adopted the "conviction
by final judgment" requirement, reviving in effect the original
provision of the 1973 Constitution on the pardoning power, was, as
expounded by Commissioner Napoleon Rama, to prevent the
President from exercising executive power in derogation of the
judicial power. 15
Indeed, an appeal brings the entire case within the exclusive
jurisdiction of the appellate court. A becoming regard for the doctrine
of separation of powers demands that such exclusive authority of the
appellate court be fully respected and kept unimpaired. For truly, had
not the present Constitution adopted the "conviction by final
judgment" limitation, the President could, at any time, and even
without the knowledge of the court, extend executive clemency to
any one whom he, in good faith or otherwise, believes to merit
presidential mercy. It cannot be denied that under the Jones Law and
the 1981 amendments to the 1973 Constitution on the pardoning
power which did not require conviction, the President had unimpeded
power to grant pardon even before the criminal case could be heard.
And under the 1935 Constitution which required "conviction" only, the
power could be exercised at any time after conviction and regardless
of the pendency of the appeal. In either case, there could be the risk
not only of a failure of justice but also of a frustration of the system of
administration of justice in view of the derogation of the jurisdiction of
the trial or appellate court. Where the President is not so prevented
by the Constitution, not even Congress can impose any restriction to
prevent a presidential folly. 16 Hence, nothing but a change in the
constitutional provision consisting in the imposition of "conviction by
final judgment" requirement can change the rule. The new
Constitution did it.
4
Hence, before an appellant may be validly granted pardon, he
must first ask for the withdrawal of his appeal, i.e., the appealed
conviction must first be brought to finality.
Accordingly, while this Court, in its resolution of 21 March 1991
in People vs. Pedro Sepada, 17 dismissed the appeal for having
become moot and academic in view of the parole granted to the
appellant, it explicitly declared the necessity of a final judgment
before parole or pardon could be extended. Thus:
CONSIDERING THE FOREGOING, the COURT RESOLVED to
DISMISS the appeal for having become moot and academic. To
avoid any possible conflict with the judicial determination of pending
appeals, the Court further DIRECTED the Board of Pardons and
Parole to adopt a system which enables it to ascertain whether a
sentence has become final and executory and has, in fact, been
executed before acting on any application for parole or pardon. The
Court Administrator shall coordinate with the Department of Justice
on how this may be best achieved. (Emphasis supplied).
Recently, in its resolution of 31 January 1995 in People vs.
Hinlo, 18 this Court categorically declared to be "in clear violation of
the law" the "practice of processing applications for pardon or parole
despite pending appeals." This Court resolved therein as follows:
IN VIEW OF THE FOREGOING, in order to put a stop to the practice
of processing applications for pardon and parole despite pending
appeals which is in clear violation of the law, the Court
Resolved to:
(1) REQUIRE Atty. Conrado H. Edig, counsel de parte of accused
Bernardo Hinlo, Catalino Capin, Martin Hinlo and Cecerio Ongco,
who were given pardon, to secure and file the withdrawal of the
appeals of said accused within ten days from receipt of this
Resolution;
(2) CALL the attention of the Presidential Committee to observe the
proper procedure as required by law before granting bail, pardon or
parole in cases before it; and
(3) REMIND the Board of Pardons and Parole about the Court's
directive in the People v. Sepada case. (Emphasis supplied).
The above pronouncements of this Court in Sepada and
in Hinlo  may still be unheeded, either through deliberate disregard
thereof or by reason of an erroneous application of the obiter
dictum in Monsanto  or of the ruling in Crisola. Hence, the need for
decisive action on the matter.
We now declare that the "conviction by final judgment"
limitation under Section 19, Article VII of the present
Constitution prohibits the grant of pardon, whether full or
conditional, to an accused during the pendency of his appeal
from his conviction by the trial court. Any application therefor, if
one is made, should not be acted upon or the process toward
its grant should not be begun unless the appeal is withdrawn.
Accordingly, the agencies or instrumentalities of the Government
concerned must require proof from the accused that he has not
appealed from his conviction or that he has withdrawn his appeal.
Such proof may be in the form of a certification issued by the trial
court or the appellate court, as the case may be. The acceptance of
the pardon shall not operate as an abandonment or waiver of the
appeal, and the release of an accused by virtue of a pardon,
commutation of sentence, or parole before the withdrawal of an
appeal shall render those responsible therefor administratively liable.
Accordingly, those in custody of the accused must not solely rely on
the pardon as a basis for the release of the accused from
confinement.
And now on the instant case. Considering that appellant Ricky
Mengote has not filed a motion to withdraw his appeal up to this date
the conditional pardon extended to him should not have been
5
enforced. Nonetheless, since he stands on the same footing as the
accused-appellants in the Hinlo  case, he may be freed from the full
force, impact, and effect of the rule herein pronounced subject to the
condition set forth below. This rule shall fully bind pardons extended
after 31 January 1995 during the pendency of the grantee's appeal.
WHEREFORE, counsel for accused-appellant Ricky Mengote y
Cuntado is hereby given thirty (30) days from notice hereof
within which to secure from the latter the withdrawal of his
appeal and to submit it to this Court. The conditional pardon
granted the said appellant shall be deemed to take effect only
upon the grant of such withdrawal. In case of non-compliance with
this Resolution, the Director of the Bureau of Corrections must exert
every possible effort to take back into his custody the said appellant,
for which purpose he may seek the assistance of the Philippine
National Police or the National Bureau of Investigation.
Let copies of this Resolution be furnished the Office of the President,
the Department of Justice, the Board of Pardons and Parole, and the
Presidential Committee for the Grant of Bail, Release, or Pardon.
Llamas vs. Executive Secretary
Facts:
Vice-Governor Llamas together with some other complainants filed
an administrative case against Governor Ocampo III of Tarlac for
alleged acts constituting graft and corruption. After trial, the
Secretary of the then Department of Local Government found
Ocampo guilty of serious neglect of duty and/or abuse of authority for
entering into a loan contract grossly/manifestly disadvantageous to
Tarlac Province and meted a penalty of suspension for 90 days.
Llamas, assumed office. In not less than 30 days, however,
Executive Secretary Orbos, by authority of the President, issued a
Resolution granting executive clemency to Ocampo (after finding the
relative success of Ocampo's livelihood loan program) in the sense
that the latter's 90-day suspension is reduced to the period already
served. Ocampo reassumed the governorship of the province,
allegedly without any notification made to Llamas. Llamas
questioned the Resolution before the SC.
Petitioner's main argument is that the President may grant executive
clemency only in criminal cases, based on Article VII, Section 19 of
the Constitution which reads:
Sec. 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence
of a majority of all the members of the Congress.
Petitioner argued that the qualifying phrase “after conviction by
final judgment” applies solely to criminal cases, and no other law
allows the grant of executive clemency or pardon to anyone who has
been “convicted in an administrative case.
6
Respondent Governor avers that since under the Constitution
discretionary authority is granted to the President on the exercise of
executive clemency, the same constitutes a political question which
is beyond judicial review.
Issues:
1. Is the question on the exercise of executive clemency by the
president a political question?
2. May the President grant executive clemency in administrative
cases?
3. Was petitioner's right to due process violated when he was not
notified of the grant of executive clemency?
Held:
1. While it is true that courts cannot inquire into the manner in which
the President's discretionary powers are exercised or into the
wisdom for its exercise, it is also a settled rule that the Court may
exercise its power of judicial review when the issue involved
concerns the validity of such discretionary powers or whether
said powers are within the limits prescribed by the Constitution.
And such review does not constitute a modification or correction of
the act of the President, nor does it constitute interference with the
functions of the President. Besides, under the 1987 Constitution, the
Supreme Court has been conferred an "expanded jurisdiction" to
review the decisions of the other branches and agencies of the
government to determine whether or not they have acted within the
bounds of the Constitution.
2. Yes. "Ubi lex non distinguit, nec nos distinguire debemos." If
the law does not distinguish, so We must not distinguish. The
Constitution does not distinguish between which cases executive
clemency may be exercised by the President, with the sole
exclusion of impeachment cases. By the same token, if executive
clemency may be exercised only in criminal cases, it would indeed
be unnecessary to provide for the exclusion of impeachment cases
from the coverage of Article VII, Section 19 of the Constitution.
Following petitioner's proposed interpretation, cases of impeachment
are automatically excluded inasmuch as the same do not necessarily
involve criminal offenses. In the same vein, We do not clearly see
any valid and convincing reason why the President cannot grant
executive clemency in administrative cases. It is Our considered
view that if the President can grant reprieves, commutations and
pardons, and remit fines and forfeitures in criminal cases, with much
more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.
If those already adjudged guilty criminally in court may be pardoned,
those adjudged guilty administratively should likewise be extended
the same benefit. In criminal cases, the quantum of evidence
required to convict an individual is proof beyond reasonable doubt,
but the Constitution grants to the President the power to pardon
the act done by the proved criminal and in the process exempts
him from punishment therefor. On the other hand, in
administrative cases, the quantum of evidence required is mere
substantial evidence to support a decision, not to mention that as to
the admissibility of evidence, administrative bodies are not bound by
the technical and rigid rules of admissibility prescribed in criminal
cases. It will therefore be unjust and unfair for those found
guilty administratively of some charge if the same effects of
pardon or executive clemency cannot be extended to them,
even in the sense of modifying a decision to subserve the
interest of the public.
Moreover, the President, in the exercise of her power of supervision
and control over all executive departments, may substitute her
decision for that of her subordinate, most especially where the basis
therefor would be to serve the greater public interest. It is clearly
7
within the power of the President not only to grant "executive
clemency" but also to reverse or modify a ruling issued by a
subordinate against an erring public official, where a
reconsideration of the facts alleged would support the same. It is in
this sense that the alleged executive clemency was granted, after
adducing reasons that subserve the public interest. — "the relative
success of . . . livelihood loan program.
However, that when we say the President can grant executive
clemency in administrative cases, we refer only to all administrative
cases in the Executive branch, not in the Judicial or Legislative
branches of the government.
3. Petitioner's argument that his constitutional rights to due process
were violated is uruneritorious. Pardon has been defined as "the
private, though official, act of the executive magistrate, delivered to
the individual for whose benefit it is intended and not communicated
officially to the court. ..." Thus, assuming that petitioner was not
notified of the subject pardon, it is only because said notice is
unnecessary. (Llamas vs. Executive Secretary, G.R. No. 99031,
October 15, 1991)
RESIDUAL POWERS
G.R. No. 88211 October 27, 1989
MARCOS, petitioners,
vs.
HONORABLE RAUL MANGLAPUS,
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of
eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of
discretion in determining that the return of former President
Marcos and his family at the present time and under present
circumstances pose a threat to national interest and welfare and
in prohibiting their return to the Philippines. On September 28, 1989,
former President Marcos died in Honolulu, Hawaii. In a statement,
President Aquino said:
In the interest of the safety of those who will take the death of Mr.
Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of Ferdinand
E. Marcos will not be allowed to be brought to our country until such
time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration,
p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
8
1. to bar former President Marcos and his family from returning
to the Philippines is to deny them not only the inherent right of
citizens to return to their country of birth but also the protection of the
Constitution and all of the rights guaranteed to Filipinos under the
Constitution;
2. the President has no power to bar a Filipino from his
own country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former
President Marcos. Thus, petitioners prayed that the Court reconsider
its decision, order respondents to issue the necessary travel
documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos,
Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and
Gregorio Araneta to return to the Philippines, and enjoin respondents
from implementing President Aquino's decision to bar the return of
the remains of Mr. Marcos, and the other petitioners, to the
Philippines.
Commenting on the motion for reconsideration, the Solicitor General
argued that the motion for reconsideration is moot and academic as
to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal'
rights being invoked by the Marcoses under the label 'right to return',
including the label 'return of Marcos' remains, is in reality or
substance a 'right' to destabilize the country, a 'right' to hide the
Marcoses' incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner herein, to
show that there are compelling reasons to reconsider the decision of
the Court.
2. After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario under
which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. On
the contrary, instead of erasing fears as to the destabilization that will
be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President
Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who
is the "legal" President of the Philippines, and declared that the
matter "should be brought to all the courts of the world." [Comment,
p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific power of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
That the President has powers other than those expressly
stated in the Constitution is nothing new. This is recognized
9
under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate
branches.
Article II, [section] 1, provides that "The Executive Power shall be
vested in a President of the United States of America." In Alexander
Hamilton's widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow it
in [sections] 2 and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the conditional
language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections 2
and 31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of execution
power; leaving the rest to flow from the general grant of that power,
interpreted in confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court — accepted
Hamilton's proposition, concluding that the federal executive, unlike
the Congress, could exercise power from sources not enumerated,
so long as not forbidden by the constitutional text: the executive
power was given in general terms, strengthened by specific terms
where emphasis was regarded as appropriate, and was limited by
direct expressions where limitation was needed. . ." The language of
Chief Justice Taft in Myers makes clear that the constitutional
concept of inherent power is not a synonym for power without limit;
rather, the concept suggests only that not all powers granted in the
Constitution are themselves exhausted by internal enumeration, so
that, within a sphere properly regarded as one of "executive' power,
authority is implied unless there or elsewhere expressly limited.
[TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the
President's implied or residual powers is tantamount to setting the
stage for another dictatorship. Despite petitioners' strained analogy,
the residual powers of the President under the Constitution should
not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which
provides:
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,
There is no similarity between the residual powers of the President
under the 1987 Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the Constitution, in
compliance with his (or her) oath of office, is to protect and promote
the interest and welfare of the people. Her decision to bar the return
of the Marcoses and subsequently, the remains of Mr. Marcos at the
present time and under present circumstances is in compliance with
this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving
at this decision, the Court will not enjoin the implementation of this
decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."
10
JUDICIAL DEPARTMENT
JUDICIAL POWER
TERESITA G. FABIAN v. ANIANO A. DESIERTO, GR No. 129742,
1998-09-16
Facts:
Teresita G. Fabian was the major stockholder and president of
PROMAT Construction Development Corporation (PROMAT) which
was engaged in the construction business. Private respondents
Nestor V. Agustin was the incumbent District Engineering District
(FMED) when he allegedly committed the offenses for which he was
administratively charged in the Office in the office of the
Ombudsman.
private respondent, reportedly taking advantage of his official
position, inveigled petitioner into an amorous relationship.
In the present appeal, petitioner argues that Section 27 of Republic
Act No. 6770 (Ombudsman Act of 1989)[1] pertinently provides that -
In all administrative diciplinary cases, orders, directives or decisions
of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or... decision or denial of
the motion for reconsideration in accordance with Rule 45 of the
Rules of Court. (Emphasis supplied)
However, she points out that under Section 7, Rule III of
Administrative Order No. 07 (Rules of Procedure of the office of the
Ombudsman),[2] when a respondent is absolved of the charges in an
administrative proceeding decision of the ombudsman is final and...
unappealable.
"necessary to take an alternative recourse under Rule 65 of the
Rules of Court, because of the doubt it creates on the availability of
appeals under Rule 45 of the Rules of Court.
Republic Act No. 6770 duly implements the Constitutional mandate
with these relevant provisions:
Sec. 14. Restrictions. - x x x No court shall hear any appeal or
application for remedy against the decision or findings of the
Ombudsman except the Supreme Court on pure question on law.
Findings of fact by the Office of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of
not more than one month salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives or decisions
of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial... of
the motion for reconsideration in accordance with Rule 45 of the
Rules of Court.
The above rules may be amended or modified by the Office of the
Ombudsman as the interest of justice may require.
Issues:
She accordingly submits that the office of the ombudsman has no
authority under the law to restrict, in the manner provided in its
aforesaid Rules, the right of appeal allowed by Republic Act No.
6770, nor to limit the power of review of this Court.
Ruling:
11
Section 27 of Republic Act No. 6770 cannot validly authorize an
appeal to this Court from decisions of the Office of the
Ombudsman in administrative disciplinary cases. It...
consequently violates the proscription in Section 30, Article VI of
the Constitution against a law which increases the Appellate
jurisdiction of this Court.
Furthermore in addition to our preceding discussion on whether
Section 27 of Republic Act No. 6770 expanded the jurisdiction of this
Court without its advice and consent, private respondent's position
paper correctly yields the legislative background of Republic Act No.
6770... t also reveals that Senator
Edgardo Angara, as a co-author and the principal sponsor of S.B.
No. 543 admitted that the said provision will expand this Court's
jurisdiction, and that the Committee on Justice and Human Rights
had not consulted this Court on the matter,... As a consequence of
our ratiocination that Section 27 of Republic Act No. 6770 should be
struck down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial agencies in the
1997 Revised Rules of Civil Procedure, appeals from... decisions of
the Office of the Ombudsman in administrative disciplinary cases
should be taken to the Court of Appeals under the provisions of Rule
43.
In the situation under consideration, a transfer by the Supreme
Court, in the exercise of its rule-making power, of pending cases
involving a review of decisions of the Office of the Ombudsman
in administrative disciplinary actions to the Court of Appeals
which shall now be... vested with exclusive appellate
jurisdiction thereover, relates to procedure only... it cannot be
said that transfer of appellate jurisdiction to the Court of Appeals in
this case is an act of creating a new right of appeal because such
power of the Supreme Court to transfer appeals to subordinate
appellate courts is purely a procedural and not a... substantive
power.
rules or statutes involving a transfer of cases from one court to
another, are procedural and remedial merely and that, as such,
they are applicable to actions pending at the time the statute went
into effect
Accordingly, even from the standpoint of jurisdiction ex hypothesi the
validity of the transfer of appeals in said cases to the Court of
Appeals can be sustained.
WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman
Act of 1989), together with Section 7, Rule III of Administrative Order
No. 07 (Rules of Procedure of the Office of the Ombudsman), and
any other provision of law or issuance implementing the aforesaid
Act and... insofar as they provide for appeals in administrative
disciplinary cases from the Office of the Ombudsman to the Supreme
Court, are hereby declared INVALID and of no further force and
effect.
Principles:
First Leparto Ceramics, Inc. vs. The Court of Appeals, el al. [23] was
intended to give this Court a measure of control over cases placed
under its appellate Jurisdiction. Otherwise, the indiscriminate
enactment of... legislation enlarging its appellate jurisdiction would
unnecessarily burden the Court
Chavez vs. Judicial and Bar Council
Facts:
In 1994, instead of having only 7 members, an eighth member
was added to the JBC as two representatives from Congress
began sitting in the JBC – one from the House of Representatives
and one from the Senate, with each having one-half (1/2) of a vote.
Then, the JBC En Banc, in separate meetings held in 2000 and
12
2001, decided to allow the representatives from the Senate and the
House of Representatives one full vote each. Senator Francis
Joseph G. Escudero and Congressman Niel C. Tupas, Jr.
(respondents) simultaneously sit in the JBC as representatives of the
legislature. It is this practice that petitioner has questioned in this
petition. Respondents argued that the crux of the controversy is the
phrase “a representative of Congress.” It is their theory that the
two houses, the Senate and the House of Representatives, are
permanent and mandatory components of “Congress,” such that the
absence of either divests the term of its substantive meaning as
expressed under the Constitution. Bicameralism, as the system of
choice by the Framers, requires that both houses exercise their
respective powers in the performance of its mandated duty which is
to legislate. Thus, when Section 8(1), Article VIII of the
Constitution speaks of “a representative from Congress,” it
should mean one representative each from both Houses which
comprise the entire Congress.
Issue:
1. Are the conditions sine qua non for the exercise of the power of
judicial review have been met in this case?
2. Is the JBC’s practice of having members from the Senate and the
House of Representatives making 8 instead of 7 sitting members
unconstitutional?
3. What is the effect of the Court's finding that the current
composition of the JBC is unconstitutional?
Held:
1. Yes. The Courts’ power of judicial review is subject to several
limitations, namely: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging
the act must have “standing” to challenge; he must have a personal
and substantial interest in the case, such that he has sustained or
will sustain, direct injury as a result of its enforcement; (c) the
question of constitutionality must be raised at the earliest possible
opportunity; and (d) the issue of constitutionality must be the very lis
mota of the case. Generally, a party will be allowed to litigate only
when these conditions sine qua non are present, especially when the
constitutionality of an act by a co-equal branch of government is put
in issue.
The Court disagrees with the respondents’ contention that petitioner
lost his standing to sue because he is not an official nominee for the
post of Chief Justice. While it is true that a “personal stake” on the
case is imperative to have locus standi, this is not to say that only
official nominees for the post of Chief Justice can come to the Court
and question the JBC composition for being unconstitutional. The
JBC likewise screens and nominates other members of the Judiciary.
Albeit heavily publicized in this regard, the JBC’s duty is not at all
limited to the nominations for the highest magistrate in the land. A
vast number of aspirants to judicial posts all over the country may be
affected by the Court’s ruling. More importantly, the legality of the
very process of nominations to the positions in the Judiciary is the
nucleus of the controversy. The claim that the composition of the
JBC is illegal and unconstitutional is an object of concern, not just for
a nominee to a judicial post, but for all citizens who have the right to
seek judicial intervention for rectification of legal blunders.
2. Section 8, Article VIII of the 1987 Constitution provides:
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as
ex officio Chairman, the Secretary of Justice, and a representative of
the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.
13
From a simple reading of the above-quoted provision, it can
readily be discerned that the provision is clear and
unambiguous. The first paragraph calls for the creation of a JBC
and places the same under the supervision of the Court. Then it goes
to its composition where the regular members are enumerated: a
representative of the Integrated Bar, a professor of law, a retired
member of the Court and a representative from the private sector.
On the second part lies the crux of the present controversy. It
enumerates the ex officio or special members of the JBC composed
of the Chief Justice, who shall be its Chairman, the Secretary of
Justice and “a representative of Congress.”
The use of the singular letter “a” preceding “representative of
Congress” is unequivocal and leaves no room for any other
construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may
designate only one (1) representative to the JBC. Had it been
the intention that more than one (1) representative from the
legislature would sit in the JBC, the Framers could have, in no
uncertain terms, so provided.
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional
construction that the language employed in the Constitution must be
given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should
be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.
Verba legis non est recedendum – from the words of a statute there
should be no departure.
Applying the foregoing principle to this case, it becomes apparent
that the word “Congress” used in Article VIII, Section 8(1) of the
Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of
Representatives is being referred to, but that, in either case, only a
singular representative may be allowed to sit in the JBC.
It is worthy to note that the seven-member composition of the JBC
serves a practical purpose, that is, to provide a solution should there
be a stalemate in voting. This underlying reason leads the Court to
conclude that a single vote may not be divided into half (1/2),
between two representatives of Congress, or among any of the
sitting members of the JBC for that matter. This unsanctioned
practice can possibly cause disorder and eventually muddle the
JBC’s voting process, especially in the event a tie is reached. The
aforesaid purpose would then be rendered illusory, defeating the
precise mechanism which the Constitution itself createdWhile it
would be unreasonable to expect that the Framers provide for every
possible scenario, it is sensible to presume that they knew that an
odd composition is the best means to break a voting deadlock.
The respondents insist that owing to the bicameral nature of
Congress, the word “Congress” in Section 8(1), Article VIII of the
Constitution should be read as including both the Senate and the
House of Representatives. They theorize that it was so worded
because at the time the said provision was being drafted, the
Framers initially intended a unicameral form of Congress. Then,
when the Constitutional Commission eventually adopted a bicameral
form of Congress, the Framers, through oversight, failed to amend
Article VIII, Section 8 of the Constitution.
It is evident that the definition of “Congress” as a bicameral body
refers to its primary function in government – to legislate. In the
passage of laws, the Constitution is explicit in the distinction of the
role of each house in the process. The same holds true in Congress’
non-legislative powers. An inter-play between the two houses is
14
necessary in the realization of these powers causing a vivid
dichotomy that the Court cannot simply discount. This, however,
cannot be said in the case of JBC representation because no liaison
between the two houses exists in the workings of the JBC. Hence,
the term “Congress” must be taken to mean the entire legislative
department.
3. As a general rule, an unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection; it creates no
office; it is inoperative as if it has not been passed at all. This rule,
however, is not absolute. Under the doctrine of operative facts,
actions previous to the declaration of unconstitutionality are legally
recognized. They are not nullified. This is essential in the interest of
fair play.
The doctrine of operative fact, as an exception to the general rule,
only applies as a matter of equity and fair play. It nullifies the effects
of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored.
The past cannot always be erased by a new judicial declaration. The
doctrine is applicable when a declaration of unconstitutionality will
impose an undue burden on those who have relied on the invalid
law. Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or
would put in limbo the acts done by a municipality in reliance upon a
law creating it.3
Under the circumstances, the Court finds the exception applicable in
this case and holds that notwithstanding its finding of
unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid. (Chavez vs. Judicial and Bar
Council, G.R. No. 202242, July 17, 2012)
RULE MAKING POWERS
Echegaray v Secretary G.R. No. 132601 October 12, 1998
Per Curiam
Facts:
The SC affirmed the conviction of petitioner Leo Echegaray y Pilo for
the crime of rape of the 10 year-old daughter of his common-law
spouse and the imposition upon him of the death penalty for the said
crime.
He filed an MFR and a supplemental MFR raising for the first time
the issue of the constitutionality of Republic Act No. 7659 and the
death penalty for rape. The Court denied both motions.
In the meantime, Congress had seen it fit to change the mode of
execution of the death penalty from electrocution to lethal injection,
and passed Republic Act No. 8177, AN ACT DESIGNATING
DEATH BY LETHAL INJECTION AS THE METHOD OF
CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE
PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS
AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659.
The convict filed a Petition for prohibition from carrying out the lethal
injection against him under the grounds that it constituted cruel,
degrading, or unusual punishment, being violative of due
process, a violation of the Philippines' obligations under
international covenants, an undue delegation of legislative power
by Congress, an unlawful exercise by respondent Secretary of the
power to legislate, and an unlawful delegation of delegated powers
by the Secretary of Justice to respondent Director.
In his motion to amend, the petitioner added equal protection as a
ground.
15
The Office of the Solicitor General stated that this Court has already
upheld the constitutionality of the Death Penalty Law, and has
repeatedly declared that the death penalty is not cruel, unjust,
excessive or unusual punishment; execution by lethal injection, as
authorized under R.A. No. 8177 and the questioned rules, is
constitutional, lethal injection being the most modern, more humane,
more economical, safer and easier to apply (than electrocution or the
gas chamber); the International Covenant on Civil and Political
Rights does not expressly or impliedly prohibit the imposition of the
death penalty; R.A. No. 8177 properly delegated legislative power to
respondent Director; and that R.A. No. 8177 confers the power to
promulgate the implementing rules to the Secretary of Justice,
Secretary of Health and the Bureau of Corrections.
The Commission on Human Rights filed a Motion for Leave of Court
to Intervene and/or Appear as Amicus Curiae with the attached
Petition to Intervene and/or Appear as Amicus Curiae. They alleged
similarly with Echegaray’s arguments.
The petitioner filed a reply similar to his first arguments. The court
gave due course to the petition.
Concisely put, petitioner argues that R.A. No. 8177 and its
implementing rules do not pass constitutional muster for: (a) violation
of the constitutional proscription against cruel, degrading or inhuman
punishment, (b) violation of our international treaty obligations, (c)
being an undue delegation of legislative power, and (d) being
discriminatory.
Issue:
1. Is it a violation of the constitutional proscription against cruel,
degrading or inhuman punishment?
2. Is it a violation of our international treaty obligations?
3. Is it an undue delegation of legislative power?
4. Is it discriminatory and contrary to law?
Held:
No 1st three. Yes to last. Petition denied.
Ratio:
1. Petitioner contends that death by lethal injection constitutes cruel,
degrading and inhuman punishment considering that (1) R.A. No.
8177 fails to provide for the drugs to be used in carrying out lethal
injection, the dosage for each drug to be administered, and the
procedure in administering said drug/s into the accused; (2) R.A. No.
8177 and its implementing rules are uncertain as to the date of the
execution, time of notification, the court which will fix the date of
execution, which uncertainties cause the greatest pain and suffering
for the convict; and (3) the possibility of "botched executions" or
mistakes in administering the drugs renders lethal injection inherently
cruel.
Now it is well-settled in jurisprudence that the death penalty per se
is not a cruel, degrading or inhuman punishment.
Harden v. Director of Prisons- "punishments are cruel when
they involve torture or a lingering death; but the punishment of
death is not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life." Would the
lack in particularity then as to the details involved in the execution by
lethal injection render said law "cruel, degrading or inhuman"? The
Court believes not. For reasons discussed, the implementing details
of R.A. No. 8177 are matters which are properly left to the
competence and expertise of administrative officials.
Petitioner contends that Sec. 16 of R.A. No. 8177 is uncertain as to
which "court" will fix the time and date of execution, and the date of
execution and time of notification of the death convict. As petitioner
16
already knows, the "court" which designates the date of execution is
the trial court which convicted the accused. The procedure is that
the "judgment is entered fifteen (15) days after its promulgation, and
10 days thereafter, the records are remanded to the court below
including a certified copy of the judgment for execution. Neither is
there any uncertainty as to the date of execution nor the time of
notification. As to the date of execution, Section 15 of the
implementing rules must be read in conjunction with the last
sentence of Section 1 of R.A. No. 8177 which provides that the death
sentence shall be carried out "not earlier than one (1) year nor later
then eighteen (18) months from the time the judgment imposing the
death penalty became final and executory, without prejudice to the
exercise by the President of his executive clemency powers at all
times." Hence, the death convict is in effect assured of eighteen (18)
months from the time the judgment imposing the death penalty
became final and executor wherein he can seek executive clemency
and attend to all his temporal and spiritual affairs.
Petitioner further contends that the infliction of "wanton pain" in case
of possible complications in the intravenous injection that respondent
Director is an untrained and untested person insofar as the choice
and administration of lethal injection is concerned, renders lethal
injection a cruel, degrading and inhuman punishment. This is
unsubstantiated.
First. Petitioner has neither alleged nor presented evidence that
lethal injection required the expertise only of phlebotomists and not
trained personnel and that the drugs to be administered are unsafe
or ineffective. Petitioner simply cites situations in the United States
wherein execution by lethal injection allegedly resulted in prolonged
and agonizing death for the convict, without any other evidence
whatsoever.
Second. Petitioner overlooked Section 1, third paragraph of R.A. No.
8177 which requires that all personnel involved in the execution
proceedings should be trained prior to the performance of such task.
We must presume that the public officials entrusted with the
implementation of the death penalty will carefully avoid inflicting cruel
punishment.
Third. Any infliction of pain in lethal injection is merely incidental in
carrying out the execution of death penalty and does not fall within
the constitutional proscription against cruel, degrading and inhuman
punishment. "In a limited sense, anything is cruel which is calculated
to give pain or distress, and since punishment imports pain or
suffering to the convict, it may be said that all punishments are cruel.
But of course the Constitution does not mean that crime, for this
reason, is to go unpunished." The cruelty against which the
Constitution protects a convicted man is cruelty inherent in the
method of punishment, not the necessary suffering involved in any
method employed to extinguish life humanely.
What is cruel and unusual "is not fastened to the obsolete but may
acquire meaning as public opinion becomes enlightened by a
humane justice" and "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society."
2. International Covenant on Civil And Political Rights states:
2. In countries which have not abolished the death penalty, sentence
of death may be imposed only for the most serious crimes in
accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and
to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court."
The punishment was subject to the limitation that it be imposed for
the "most serious crimes".
Included with the declaration was the Second Optional Protocol to
the International Covenant on Civil and Political Rights, Aiming at the
Abolition of the Death Penalty was adopted by the General Assembly
17
on December 15, 1989. The Philippines neither signed nor ratified
said document.
3. R.A. No. 8177 likewise provides the standards which define the
legislative policy, mark its limits, map out its boundaries, and specify
the public agencies which will apply it. It indicates the circumstances
under which the legislative purpose may be carried out. R.A. No.
8177 specifically requires that "the death sentence shall be executed
under the authority of the Director of the Bureau of Corrections,
endeavoring so far as possible to mitigate the sufferings of the
person under the sentence during the lethal injection as well as
during the proceedings prior to the execution." Further, "the Director
of the Bureau of Corrections shall take steps to ensure that the lethal
injection to be administered is sufficient to cause the instantaneous
death of the convict." The legislature also mandated that "all
personnel involved in the administration of lethal injection shall be
trained prior to the performance of such task." The Court cannot see
that any useful purpose would be served by requiring greater detail.
The question raised is not the definition of what constitutes a criminal
offense, but the mode of carrying out the penalty already imposed by
the Courts. In this sense, R.A. No. 8177 is sufficiently definite and
the exercise of discretion by the administrative officials concerned is,
canalized within banks that keep it from overflowing.
However, the Rules and Regulations to Implement Republic Act No.
8177 suffer serious flaws that could not be overlooked. To begin
with, something basic appears missing in Section 19 of the
implementing rules which provides a manual for the execution
procedure. It was supposed to be confidential.
The Court finds in the first paragraph of Section 19 of the
implementing rules a vacuum. The Secretary of Justice has
practically abdicated the power to promulgate the manual on the
execution procedure to the Director of the Bureau of Corrections, by
not providing for a mode of review and approval. Being a mere
constituent unit of the Department of Justice, the Bureau of
Corrections could not promulgate a manual that would not bear the
imprimatur of the administrative superior, the Secretary of Justice as
the rule-making authority under R.A. No. 8177. Such apparent
abdication of departmental responsibility renders the said paragraph
invalid.
4. Petitioner contends that Section 17 of the Implementing Rules is
unconstitutional for being discriminatory as well as for being an
invalid exercise of the power to legislate by respondent Secretary.
Petitioner insists that Section 17 amends the instances when lethal
injection may be suspended, without an express amendment of
Article 83 of the Revised Penal Code, as amended by section 25 of
R.A. No. 7659.
"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH
SENTENCE. Execution by lethal injection shall not be inflicted upon
a woman within the three years next following the date of the
sentence or while she is pregnant, nor upon any person over seventy
(70) years of age. In this latter case, the death penalty shall be
commuted to the penalty of reclusion perpetua with the accessory
penalties provided in Article 40 of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for being
discriminatory as well as for being an invalid exercise of the power to
legislate by respondent Secretary. Petitioner insists that Section 17
amends the instances when lethal injection may be suspended,
without an express amendment of Article 83 of the Revised Penal
Code, as amended by section 25 of R.A. No. 7659, stating that the
death sentence shall not be inflicted upon a woman while she is
pregnant or within one (1) year after delivery, nor upon any person
over seventy years of age.
While Article 83 of the Revised Penal Code, as amended by Section
25 of Republic Act No. 7659, suspends the implementation of the
death penalty while a woman is pregnant or within one (1) year after
delivery, Section 17 of the implementing rules omits the one (1) year
18
period following delivery as an instance when the death sentence is
suspended, and adds a ground for suspension of sentence no longer
found under Article 83 of the Revised Penal Code as amended,
which is the three-year reprieve after a woman is sentenced. This
addition is, in petitioner's view, tantamount to a gender-based
discrimination sans statutory basis, while the omission is an
impermissible contravention of the applicable law.

Being merely an implementing rule, Section 17 aforecited must not

override, but instead remain consistent and in harmony with the law it
seeks to apply and implement.

19