Vizconde Massacre Case: En banc 7-vote acquittal is unconstitutional

Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
December 16, 2010


Is the seven-vote acquittal rendered by the Supreme Court en banc in the consolidated cases of Lejano v. People and People v. Webb - constitutional?


It is respectfully submitted the proper answer is NO.


The dispositive portion of the Decision, dated December 14, 2010, reads:


“WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause.

Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.

SO ORDERED.”


1. The 15 Justices voted as follows:


a. Seven (7) for acquittal;
b. Four (4) dissenting; and
c. Four (4) took no part.


2. On the basis of the seven votes, all the accused were immediately released from prison.


3. The material provisions of the 1987 Philippine Constitution appear to be as follows:


“The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” (Sec. 1, Art. II)


“The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.” (Par. 1, Sec. 4, ART. VIII)


“All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.” (Par. 2, ibid.)


“Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.” (Par. 3, ibid.)


“The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts.” (Sec. 13, ibid.)


4. There are two ways by which the SC can decide a case:


(a) En banc, referring to the total of 15 justices; or


(b) In divisions of 3, 5, or 7 justices.


5. In EN BANC proceedings, the case “shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon”.


6. In DIVISION proceedings, the case “shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon”.


a. In a division of 3 Justices, a decision must have 3 concurring votes in order to be valid. This absolute minimum is by express provision of the Constitution. It can be readily observed that the required number of votes in relation to the total number of justices in the division is CONSISTENT with the cardinal principle of DEMOCRACY or the RULE OF MAJORITY.


b. In a division of 5 Justices, a decision must also have 3 concurring votes in order to be valid. This absolute minimum is by express provision of the Constitution. It can be readily observed that the required number of votes in relation to the total number of justices in the division is CONSISTENT with the cardinal principle of DEMOCRACY or the RULE OF MAJORITY.


c. In a division of 7 Justices, 4 would constitute a QUORUM. By mechanical application of the rule, 3 out of the 4 could render a decision. This is the problem. Why? Because 3 obviously do not constitute a majority of the total number of justices in the division.


7. Therefore, the rule cannot be mechanically applied. The rule is not clear. It is ambiguous. In divisions of 3 or 5 justices, the result of the application of the rule is consistent with the rule of majority; but, in a division of 7 justices, such application results in ABSURDITY. Instead of upholding the rule of majority, the result is the RULE OF MINORITY or violation of the cardinal principle of DEMOCRACY.


8. The same ABSURDITY arises from the application of the rule in en banc proceedings where 7 justices could rule over the 15 justices of the Court. Hence, the question is whether (a) 7 out of 15, or (b) 8 out of 15 – is the CORRECT MAJORITY.


9. Where the rule is not clear, it must be construed or clarified before it can be applied. There is no such construction or clarification in the case at bar.


10. Is the rule requiring the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon – consistent with the RULE OF MAJORITY?


The answer must be qualified.


(a) First, in divisions of 3 or 5 justices, the answer is YES.
(b) Second, in a division of 7 justices, the answer is NO.
(c) Third, in en banc proceedings, the answer is NO.


In other words, the proper application of the rule is qualified. Insofar as the second and third cases are concerned, the application must be consistent with the RULE OF MAJORITY. Ergo, in the second case, the required number of votes for a valid decision should be 4, while in the third case, the required number of votes should be 8.


11. QUORUM means MAJORITY. Since the mechanical application of the rule requires the majority of the quorum, it follows that the requirement is, in reality, a majority of the majority – which actually refers to the MINORITY. Hence, there would appear two kinds of MAJORITY: the TRUE MAJORITY which is democratic, and the FALSE MAJORITY which is undemocratic.


12. Is the 7-vote acquittal valid? NO. According to the Supreme Court, where the required number of votes is not obtained, THERE IS NO DECISION (Fortich v. Corona, 312 SCRA 751, at 758).


13. Is the order of release questionable? YES. It appears undemocratic. It is based on the RULE OF MINORITY, not the RULE OF MAJORITY.


14. Does the inconclusive acquittal render the case undecided? NO. By parity of reasoning with the doctrine laid down in Fortich v. Corona, ibid., there is still the Court of Appeals decision affirming the conviction of the accused which must stand in view of the failure of the Supreme Court en banc to muster the necessary vote for its reversal. Thus, the appeal is lost. The appealed decision is not reversed and must therefore be deemed AFFIRMED.


15. Is the lost appeal final? NO. All the accused have 15 days from receipt of the decision within which to file a motion for reconsideration. If the motion is granted and at least one dissenting justice changes his mind and votes for acquittal in addition to the 7-vote acquittal, then the appealed conviction would be REVERSED with finality. Otherwise, the conviction stands.