EN BANC
[ G.R. No. 148208, December 15, 2004 ]
CENTRAL BANK (NOW BANGKO SENTRAL NG PILIPINAS) EMPLOYEES
ASSOCIATION, INC., PETITIONER, VS. BANGKO SENTRAL NG PILIPINAS AND THE
EXECUTIVE SECRETARY, RESPONDENTS.
DECISION
PUNO, J.:
Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that its continued operation
would violate the equal protection of the law? We hold that with the
passage of the subsequent laws amending the charter of seven (7) other
governmental financial institutions (GFIs), the continued operation of
the last proviso of Section 15(c), Article II of Republic Act (R.A.) No. 7653, constitutes invidious discrimination on the 2,994 rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP).
I.
The Case
First the facts.
On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old Central Bank of the Philippines, and created a new BSP.
On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank (now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary of the Office of the President, to restrain respondents from further implementing the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Respondent BSP, in its comment,[10] contends that the provision does not violate the equal protection clause and can stand the constitutional test, provided it is construed in harmony with other provisions of the same law, such as “fiscal and administrative autonomy of BSP,” and the mandate of the Monetary Board to “establish professionalism and excellence at all levels in accordance with sound principles of management.”
The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity of the provision. Quite simplistically, he argues that the classification is based on actual and real differentiation, even as it adheres to the enunciated policy of R.A. No. 7653 to establish professionalism and excellence within the BSP subject to prevailing laws and policies of the national government.[11]
II.
Issue
Thus, the sole - albeit significant - issue
to be resolved in this case is whether the last paragraph of Section
15(c), Article II of R.A. No. 7653, runs afoul of the constitutional
mandate that "No person shall be. . . denied the equal protection of the
laws."[12]
III.
Ruling
Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz:
The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its classification between the rank-and-file and the officers of the BSP, found reasonable because there were substantial distinctions that made real differences between the two classes.
The above-mentioned subsequent enactments, however, constitute significant changes in circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the classification - albeit made indirectly as a consequence of the passage of eight other laws - between the rank-and-file of the BSP and the seven other GFIs. The classification must not only be reasonable, but must also apply equally to all members of the class. The proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust distinctions between persons who are without differences.[40]
Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is Congress’ power to classify so unbridled as to sanction unequal and discriminatory treatment, simply because the inequity manifested itself, not instantly through a single overt act, but gradually and progressively, through seven separate acts of Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can only be invoked against a classification made directly and deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to determining the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack thereof, among several similar enactments made over a period of time?
In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to the seven other GFIs) rests “on a policy determination by the legislature.” All legislative enactments necessarily rest on a policy determination - even those that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution.
In fine, the “policy determination” argument may support the inequality of treatment between the rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment between BSP rank-and-file and other GFIs’ who are similarly situated. It fails to appreciate that what is at issue in the second level of scrutiny is not the declared policy of each law per se, but the oppressive results of Congress’ inconsistent and unequal policy towards the BSP rank-and-file and those of the seven other GFIs. At bottom, the second challenge to the constitutionality of Section 15(c), Article II of Republic Act No. 7653 is premised precisely on the irrational discriminatory policy adopted by Congress in its treatment of persons similarly situated. In the field of equal protection, the guarantee that "no person shall be … denied the equal protection of the laws” includes the prohibition against enacting laws that allow invidious discrimination, directly or indirectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it is unconstitutional.[41]
It is against this standard that the disparate treatment of the BSP rank-and-file from the other GFIs cannot stand judicial scrutiny. For as regards the exemption from the coverage of the SSL, there exist no substantial distinctions so as to differentiate, the BSP rank-and-file from the other rank-and-file of the seven GFIs. On the contrary, our legal history shows that GFIs have long been recognized as comprising one distinct class, separate from other governmental entities.
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to provide equal pay for substantially equal work, and (2) to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. P.D. No. 985 was passed to address disparities in pay among similar or comparable positions which had given rise to dissension among government employees. But even then, GFIs and government-owned and/or controlled corporations (GOCCs) were already identified as a distinct class among government employees. Thus, Section 2 also provided, “[t]hat notwithstanding a standardized salary system established for all employees, additional financial incentives may be established by government corporation and financial institutions for their employees to be supported fully from their corporate funds and for such technical positions as may be approved by the President in critical government agencies.”[42]
The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b) provides that one of the principles governing the Compensation and Position Classification System of the Government is that: “[b]asic compensation for all personnel in the government and government-owned or controlled corporations and financial institutions shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages.”
Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and Position Classification System of the SSL,[43] but rates of pay under the SSL were determined on the basis of, among others, prevailing rates in the private sector for comparable work. Notably, the Compensation and Position Classification System was to be governed by the following principles: (a) just and equitable wages, with the ratio of compensation between pay distinctions maintained at equitable levels;[44] and (b) basic compensation generally comparable with the private sector, in accordance with prevailing laws on minimum wages.[45] Also, the Department of Budget and Management was directed to use, as guide for preparing the Index of Occupational Services, the Benchmark Position Schedule, and the following factors:[46]
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all aspects pertaining to compensation and position classification, in consonance with Section 5, Article IX-B of the 1997 Constitution.[47]
Then came the enactment of the amended charter of the BSP, implicitly exempting the Monetary Board from the SSL by giving it express authority to determine and institute its own compensation and wage structure. However, employees whose positions fall under SG 19 and below were specifically limited to the rates prescribed under the SSL.
Subsequent amendments to the charters of other GFIs followed. Significantly, each government financial institution (GFI) was not only expressly authorized to determine and institute its own compensation and wage structure, but also explicitly exempted - without distinction as to salary grade or position - all employees of the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant or withdrawal of exemption from the SSL, based on the perceived need “to fulfill the mandate of the institution concerned considering, among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC or GFI is in direct competition with their [sic] counterparts in the private sector, not only in terms of the provisions of goods or services, but also in terms of hiring and retaining competent personnel; and (3) the GOCC or GFI are or were [sic] experiencing difficulties filling up plantilla positions with competent personnel and/or retaining these personnel. The need for the scope of exemption necessarily varies with the particular circumstances of each institution, and the corresponding variance in the benefits received by the employees is merely incidental.”
The fragility of this argument is manifest. First, the BSP is the central monetary authority,[48] and the banker of the government and all its political subdivisions.[49] It has the sole power and authority to issue currency;[50] provide policy directions in the areas of money, banking, and credit; and supervise banks and regulate finance companies and non-bank financial institutions performing quasi-banking functions, including the exempted GFIs.[51] Hence, the argument that the rank-and-file employees of the seven GFIs were exempted because of the importance of their institution’s mandate cannot stand any more than an empty sack can stand.
Second, it is certainly misleading to say that “the need for the scope of exemption necessarily varies with the particular circumstances of each institution.” Nowhere in the deliberations is there a cogent basis for the exclusion of the BSP rank-and-file from the exemption which was granted to the rank-and-file of the other GFIs and the SEC. As point in fact, the BSP and the seven GFIs are similarly situated in so far as Congress deemed it necessary for these institutions to be exempted from the SSL. True, the SSL-exemption of the BSP and the seven GFIs was granted in the amended charters of each GFI, enacted separately and over a period of time. But it bears emphasis that, while each GFI has a mandate different and distinct from that of another, the deliberations show that the raison d’être of the SSL-exemption was inextricably linked to and for the most part based on factors common to the eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified and effective personnel to carry out the GFI’s mandate; and (3) the recognition that the compensation package of these GFIs is not competitive, and fall substantially below industry standards. Considering further that (a) the BSP was the first GFI granted SSL exemption; and (b) the subsequent exemptions of other GFIs did not distinguish between the officers and the rank-and-file; it is patent that the classification made between the BSP rank-and-file and those of the other seven GFIs was inadvertent, and NOT intended, i.e., it was not based on any substantial distinction vis-à-vis the particular circumstances of each GFI. Moreover, the exemption granted to two GFIs makes express reference to allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other GFIs,[52] underscoring that GFIs are a particular class within the realm of government entities.
It is precisely this unpremeditated discrepancy in treatment of the rank-and-file of the BSP - made manifest and glaring with each and every consequential grant of blanket exemption from the SSL to the other GFIs - that cannot be rationalized or justified. Even more so, when the SEC - which is not a GFI - was given leave to have a compensation plan that “shall be comparable with the prevailing compensation plan in the [BSP] and other [GFIs],”[53] then granted a blanket exemption from the SSL, and its rank-and-file endowed a more preferred treatment than the rank-and-file of the BSP.
The violation to the equal protection clause becomes even more pronounced when we are faced with this undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the eight GFIs from the coverage of the SSL, the exclusion of the BSP rank-and-file employees would have been devoid of any substantial or material basis. It bears no moment, therefore, that the unlawful discrimination was not a direct result arising from one law. “Nemo potest facere per alium quod non potest facere per directum.” No one is allowed to do indirectly what he is prohibited to do directly.
It has also been proffered that “similarities alone are not sufficient to support the conclusion that rank-and-file employees of the BSP may be lumped together with similar employees of the other GOCCs for purposes of compensation, position classification and qualification standards. The fact that certain persons have some attributes in common does not automatically make them members of the same class with respect to a legislative classification.” Cited is the ruling in Johnson v. Robinson:[54] “this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute’s different treatment of the two groups.”
The reference to Johnson is inapropos. In Johnson, the US Court sustained the validity of the classification as there were quantitative and qualitative distinctions, expressly recognized by Congress, which formed a rational basis for the classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life. The Court listed the peculiar characteristics as follows:
Moreover, the issue in this case is not - as the dissenting opinion of Mme. Justice Carpio-Morales would put it - whether “being an employee of a GOCC or GFI is reasonable and sufficient basis for exemption” from R.A. No. 6758. It is Congress itself that distinguished the GFIs from other government agencies, not once but eight times, through the enactment of R.A. Nos. 7653, 7907, 8282, 8289, 8291, 8523, 8763, and 9302. These laws may have created a “preferred sub-class within government employees,” but the present challenge is not directed at the wisdom of these laws. Rather, it is a legal conundrum involving the exercise of legislative power, the validity of which must be measured not only by looking at the specific exercise in and by itself (R.A. No. 7653), but also as to the legal effects brought about by seven separate exercises - albeit indirectly and without intent.
Thus, even if petitioner had not alleged “a comparable change in the factual milieu as regards the compensation, position classification and qualification standards of the employees of the BSP (whether of the executive level or of the rank-and-file) since the enactment of the new Central Bank Act” is of no moment. In GSIS v. Montesclaros,[57] this Court resolved the issue of constitutionality notwithstanding that claimant had manifested that she was no longer interested in pursuing the case, and even when the constitutionality of the said provision was not squarely raised as an issue, because the issue involved not only the claimant but also others similarly situated and whose claims GSIS would also deny based on the challenged proviso. The Court held that social justice and public interest demanded the resolution of the constitutionality of the proviso. And so it is with the challenged proviso in the case at bar.
It bears stressing that the exemption from the SSL is a “privilege” fully within the legislative prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees breached the latter’s right to equal protection. In other words, while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review.[58] So when the distinction made is superficial, and not based on substantial distinctions that make real differences between those included and excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct.[59] As held in the United Kingdom case of Hooper v. Secretary of State for Work and Pensions,[60] once the State has chosen to confer benefits, “discrimination” contrary to law may occur where favorable treatment already afforded to one group is refused to another, even though the State is under no obligation to provide that favorable treatment. [61]
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause does not demand absolute equality but it requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion; whatever restrictions cast on some in the group is equally binding on the rest.[62]
In light of the lack of real and substantial distinctions that would justify the unequal treatment between the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the seven subsequent charters has rendered the continued application of the challenged proviso anathema to the equal protection of the law, and the same should be declared as an outlaw.
IV.
Equal Protection Under
International Lens
In our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the “rational basis” test, coupled with a deferential attitude to legislative classifications[63] and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution. [64]
Most, if not all, international human rights instruments include some prohibition on discrimination and/or provisions about equality.[75] The general international provisions pertinent to discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR);[76] the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial Discrimination (CERD);[77] the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC).
In the broader international context, equality is also enshrined in regional instruments such as the American Convention on Human Rights;[78] the African Charter on Human and People's Rights;[79] the European Convention on Human Rights;[80] the European Social Charter of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance to European states). Even the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.[81]
The equality provisions in these instruments do not merely function as traditional "first generation" rights, commonly viewed as concerned only with constraining rather than requiring State action. Article 26 of the ICCPR requires “guarantee[s]” of “equal and effective protection against discrimination” while Articles 1 and 14 of the American and European Conventions oblige States Parties “to ensure ... the full and free exercise of [the rights guaranteed] ... without any discrimination” and to “secure without discrimination” the enjoyment of the rights guaranteed.[82] These provisions impose a measure of positive obligation on States Parties to take steps to eradicate discrimination.
In the employment field, basic detailed minimum standards ensuring equality and prevention of discrimination, are laid down in the ICESCR[83] and in a very large number of Conventions administered by the International Labour Organisation, a United Nations body.[84] Additionally, many of the other international and regional human rights instruments have specific provisions relating to employment.[85]
The United Nations Human Rights Committee has also gone beyond the earlier tendency to view the prohibition against discrimination (Article 26) as confined to the ICCPR rights.[86] In Broeks[87] and Zwaan-de Vries,[88] the issue before the Committee was whether discriminatory provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope of Article 26. The Dutch government submitted that discrimination in social security benefit provision was not within the scope of Article 26, as the right was contained in the ICESCR and not the ICCPR. They accepted that Article 26 could go beyond the rights contained in the Covenant to other civil and political rights, such as discrimination in the field of taxation, but contended that Article 26 did not extend to the social, economic, and cultural rights contained in ICESCR. The Committee rejected this argument. In its view, Article 26 applied to rights beyond the Covenant including the rights in other international treaties such as the right to social security found in ICESCR:
Apropos the special protection afforded to labor under our Constitution and international law, we held in International School Alliance of Educators v. Quisumbing:[93]
Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions.[95] We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice.[96] Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others.[97]
In the 2003 case of Francisco v. House of Representatives, this Court has stated that: “[A]merican jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned....[I]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs.”[98] Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged.[99]
Further, the quest for a better and more “equal” world calls for the use of equal protection as a tool of effective judicial intervention.
V.
A Final Word
Finally,
concerns have been raised as to the propriety of a ruling voiding the
challenged provision. It has been proffered that the remedy of
petitioner is not with this Court, but with Congress, which alone has
the power to erase any inequity perpetrated by R.A. No. 7653. Indeed, a
bill proposing the exemption of the BSP rank-and-file from the SSL has
supposedly been filed.
Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the “rational basis” test, and the legislative discretion would be given deferential treatment.[105]
But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor.[106]
To be sure, the BSP rank-and-file employees merit greater concern from this Court. They represent the more impotent rank-and-file government employees who, unlike employees in the private sector, have no specific right to organize as a collective bargaining unit and negotiate for better terms and conditions of employment, nor the power to hold a strike to protest unfair labor practices. Not only are they impotent as a labor unit, but their efficacy to lobby in Congress is almost nil as R.A. No. 7653 effectively isolated them from the other GFI rank-and-file in compensation. These BSP rank-and-file employees represent the politically powerless and they should not be compelled to seek a political solution to their unequal and iniquitous treatment. Indeed, they have waited for many years for the legislature to act. They cannot be asked to wait some more for discrimination cannot be given any waiting time. Unless the equal protection clause of the Constitution is a mere platitude, it is the Court’s duty to save them from reasonless discrimination.
IN VIEW WHEREOF, we hold that the continued operation and implementation of the last proviso of Section 15(c), Article II of Republic Act No. 7653 is unconstitutional.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see dissenting.
Corona, and Callejo, Sr., JJ., on leave.
[1] Rollo, p. 7.
[2] Id., p. 9.
[3] i.e., (1) make the salary of the BSP personnel competitive to attract highly competent personnel; (2) establish professionalism and excellence at all levels in the BSP; and (3) ensure the administrative autonomy of the BSP as the central monetary authority
[4] Rollo, pp. 8-10.
[5] Id., pp. 10-12, quoting Former Senator Maceda, Record of the Senate, First Regular Session, March 15 to June 10, 1993, Vol. IV, No. 86, p. 1087.
[6] Id., pp. 12-14.
[7] Id., p. 14.
[8] Id., pp. 2-5.
[9] Id., pp. 14-15.
[10] Id., pp. 62-75.
[11] Id., pp. 76-90.
[12] 1987 Constitution, Art. III, § 1.
[13] No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
[14] Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No. L-27113, 61 SCRA 93, 110-111 (November 19, 1974); Anucension v. National Labor Union, No. L-26097, 80 SCRA 350, 372-373 (November 29, 1977); Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, 86 SCRA 270, 275 (November 10, 1978); Dumlao v. Comelec, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); Ceniza v. Comelec, G.R. No. L-52304, 95 SCRA 763, 772-773 (January 28, 1980); Himagan v. People, G.R. No. 113811, 237 SCRA 538 (October 7, 1994); The Conference of Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, 243 SCRA 666, 677 (April 21, 1995); JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319, 331–332 (August 5, 1996); and Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278, 288-289 (January 20, 1999). See also Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (May 31, 1957); Vera v. Cuevas, Nos. L-33693-94, 90 SCRA 379, 388 (May 31, 1979); and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873, and 115931, 235 SCRA 630, 684 (August 25, 1994).
[15] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, 175 SCRA 343 (July 14, 1989). See Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278 (January 20, 1999).
[16] Ichong, etc., et al. v. Hernandez, etc. and Sarmiento, No. L-7995, 101 Phil. 1155 (May 31, 1957), citing 2 Cooley, Constitutional Limitations, pp. 824-825.
[17] Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278 (January 20, 1999); Dumlao v. Comelec, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); and Himagan v. People, G.R. No. 113811, 237 SCRA 538 (October 7, 1994). See also JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319, 331-332 (August 5, 1996); The Conference of Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, 243 SCRA 666, 677 (April 21, 1995); Ceniza v. Comelec, No. L-52304, 95 SCRA 763, 772 (January 28, 1980); Vera v. Cuevas, Nos. L-33693-94, 90 SCRA 379 (May 31, 1979); and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 and 115931, 235 SCRA 630 (August 25, 1994).
[18] Dumlao v. Comelec, No. L-52245, 95 SCRA 392, 405 (January 22, 1980), citing Peralta v. Comelec, No. L-47771, No. L-47803, No. L-47816, No. L-47767, No. L-47791 and No. L-47827, 82 SCRA 30 (March 11, 1978); Rafael v. Embroidery and Apparel Control and Inspection Board, No. L-19978, 21 SCRA 336 (September 29, 1967); and Ichong, etc., et al. v. Hernandez, etc. and Sarmiento, No. L-7995, 101 Phil 1155 (May 31, 1957). See also JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319 (August 5, 1996); Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993); and Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, 86 SCRA 270, 275 (November 10, 1978).
[19] People v. Carlos, No. L-239, 78 Phil. 535 (June 30, 1947).
[20] See Mabanag v. Lopez Vito, No. L-1123, 78 Phil. 1 (March 5, 1947); Casco Philippine Chemical Co., Inc. v. Gimenez, No. L-17931, 7 SCRA 347 (February 28, 1963); Morales v. Subido, No. L-29658, 27 SCRA 131 (February 27, 1969); and Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993).
[21] People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937).
[22] Id., citing U. S. v. Ten Yu, 24 Phil. 1, 10 (December 28, 1912); Case v. Board of Health, 24 Phil. 250, 276 (February 4, 1913); and U. S. v. Joson, No. 7019, 26 Phil. 1 (October 29, 1913).
[23] Dumlao v. COMELEC, No. L-52245, 95 SCRA 392, 404 (January 22, 1980).
[24] Medill v. State, 477 N.W.2d 703 (Minn. 1991) (followed with reservations by, In re Cook, 138 B.R. 943 [Bankr. D. Minn. 1992]).
[25] Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949 (1935); Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941); Louisville & N. R. Co. v. Faulkner, 3 G.R. No. L-29646 07 S.W.2d 196 (Ky. 1957); and Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517 (1954).
[26] Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992)
[27] 307 N.Y. 493, 121 N.E.2d 517 (1954).
[28] Id.
[29] No. L-3708, 93 Phil. 68 (May 18, 1953).
[30] On the constitutionality of Republic Act No. 342, Section 2 provides that all debts and other monetary obligations contracted before December 8, 1941, any provision in the contract creating the same or in any subsequent agreement affecting such obligation to the contrary notwithstanding, shall not be due and demandable for a period of eight (8) years from and after settlement of the war damage claim of the debtor by the Philippine War Damage Commission; and Section 3 of said Act provides that should the provision of Section 2 be declared void and unenforceable, then as regards the obligation affected thereby, the provisions of Executive Order No. 25 dated November 18, 1944, as amended by Executive Order No. 32, dated March 10, 1945, relative to debt moratorium, shall continue to be in force and effect, any contract affecting the same to the contrary notwithstanding, until subsequently repealed or amended by a legislative enactment. It thus clearly appears in said Act that the nullification of its provisions will have the effect of reviving the previous moratorium orders issued by the President of the Philippines.
[31] Rutter v. Esteban, G.R. No. L-3708, 93 Phil. 68 (May 18, 1953).
[32] 148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941).
[33] 307 S.W.2d 196 (Ky. 1957).
[34] Id.
[35] People v. Dela Piedra, G.R. No. 121777, 350 SCRA 163 (January 24, 2001).
[36] People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937). Parenthetically, this doctrine was first enunciated in the 1886 case of Yick Wo v. Hopkins (118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220), wherein the U.S. Supreme Court, speaking through Justice Matthews, declared: “…Though the law itself be fair on its face and impartial in appearances, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”
[37] Rollo, pp. 12-14.
[38] Formerly the Home Insurance and Guaranty Corporation (HIGC).
[39] R.A. No. 8799 (2000), Section 7.2 provides: All positions of the Commission shall be governed by a compensation and position classification systems and qualification standards approved by the Commission based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plan in the Bangko Sentral ng Pilipinas and other government financial institutions and shall be subject to periodic review by the Commission no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and efficiency. The Commission shall, therefore, be exempt from laws, rules, and regulations on compensation, position classification and qualification standards. The Commission shall, however, endeavor to make its system conform as closely as possible with the principles under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended).
[40] People v. Dela Piedra, G.R. No. 121777, 350 SCRA 163 (January 24, 2001).
[41] People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937).
[42] P.D. No. 985 (August 22, 1976).
[43] R.A. No. 6758, Section 2, the policy of which is to “provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions.”
[44] Section 3(a) provides that “All government personnel shall be paid just and equitable wages; and while pay distinctions must necessarily exist in keeping with work distinctions, the ratio of compensation for those occupying higher ranks to those at lower ranks should be maintained at equitable levels giving due consideration to higher percentages of increases to lower level positions and lower percentage increases to higher level positions.”
[45] Section 3(b) states that “Basic compensation for all personnel in the government, and government-owned or controlled corporations (GOCCs) and financial institutions (GFIs) shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages.”
[46] Id., Section 9.
[47] Section 5 of the 1987 Constitution provides: “The Congress shall provide for the standardization of compensation of government officials, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.”
[48] R.A. No. 7653, Sections 1 and 3.
[49] Id., Sections 110 and 113.
[50] R.A. No. 7653, Section 50.
[51] Id., Sections 1 and 3.
[52] R.A. No. 8289 [SBGFC], Section 8; R.A. No. 9302 [PDIC], Section 2.
[53] R.A. No. 8799 (2000), Section 7.2.
[54] 415 U.S. 361 (1974).
[55] Id.
[56] Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993).
[57] G.R. No. 146494 ( July 14, 2004).
[58] Constitution, Article VIII, Section 1.
[59] See Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703, 713-715 (November 11, 1993).
[60] [2002] EWHC 191 (Admin).
[61] Id. The significance of international human rights instruments in the European context should not be underestimated. In Hooper for example, the case was brought on the alleged denial of a right guaranteed by the ECHR, given domestic effect in the U.K. through its Human Rights Act 1998 (HRA), and the ECHR, as one of the contracting parties. Also, in Wilson v United Kingdom, (30668/96) (2002) 35 E.H.R.R. 20 (ECHR), the European Court of Human Rights took into account the requirements of ILO Conventions Nos. 87 and 98, and of the European Social Charter of 1961, in ruling that the United Kingdom had breached the applicants' freedom of association. See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[62] J.M. Tuason and Co., Inc. v. Land Tenure Administration, No. L-21064, 31 SCRA 413, 435 (February 18, 1970).
[63] See Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777 (July 14, 1989).
[64] People v. Vera, supra, citing U. S. v. Ten Yu, 24 Phil. 1, 10 (December 28, 1912); Case v. Board of Health and Heiser, supra; and U. S. v. Joson, supra. See Peralta v. COMELEC, No. L-47771, No. L-47803, No. L-47816, No. L-47767, No. L-47791 and No. L-47826, 82 SCRA 30 (March 11, 1978), citing Cooper v. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law 56 (3rd ed. 1942).
[65] Gerald Gunther, Constitutional Law 586-589 (11th ed. 1985).
[66] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
[67] See Gay Moon, Complying with Its International Human Rights Obligations: The United Kingdom and Article 26 of the International Covenant on Civil and Political Rights, 3 E.H.R.L.R. 283-307 (2003).
[68] (No.2) (A/6) 1 E.H.R.R. 252 (1979-80) (ECHR).
[69] The European Court has also taken an even more restricted approach to Article 14, asking only whether the treatment at issue had a justified aim in view or whether the authorities pursued “other and ill-intentioned designs.” National Union of Belgian Police v. Belgium, 1 E.H.R.R. 578 (1979-80); and Swedish Engine Drivers' Union v. Sweden 1 E.H.R.R. 617 (1979-80).
[70] Abdulaziz v. United Kingdom, (A/94) 7 E.H.R.R. 471 (1985) (ECHR).
[71] 23 E.H.R.R. 364 (1997).
[72] Id.
[73] Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[74] Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003). See Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
[75]Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[76] Article 26 of the ICCPR provides that:
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
[77] Article 5(b) of CERD requires States to protect individuals from (racially discriminatory) violence "whether inflicted by government officials or by any individual group or institution."
[78] Article 1 of the American Conventions on Human Rights provides that:
“The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition;…”
[78] Article 26 of the ICCPR is echoed in its broad proscription of discrimination by Article 3 of the African Charter which provides that:
[81] See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003); and Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
[82] Also, Articles 2 and 3 of the ICCPR require that Contracting States agree to "respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," and (Article 3) "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." Other examples include: Article 2 of CEDAW, which require States Parties to the Convention not only to "embody the principle of the equality of men and women in their national constitutions or other appropriate legislation" but also "to ensure, through law and other appropriate means, the practical realization of this principle"; and Article 5(b) of CERD requires States to protect individuals from (racially discriminatory) violence "whether inflicted by government officials or by any individual group or institution." See also Articles 2 and 3 CSECR, and Article 2 of the African Charter, which is similar to Article 2 of the ICCPR. Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[83] Article 7 of the ICESCR provides the right:
[85] For example, Articles 11, 12 and 13 of CEDAW require the taking of "all appropriate measures" to eliminate discrimination against women in the fields of employment, health care, and other areas of economic life including the right to benefits and financial services. Article 15 of the African Charter provides a right for "every individual" to "equal pay for equal work," which, like Article 7 of the ICESCR, applies whether an individual is employed by the state or by a private body. The Council of Europe's Revised Social Charter provides for the "right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex" and to the protection of workers with family responsibilities. The Social Charter of the Council of Europe also incorporates a commitment on the part of Contracting States to "recognise the right of men and women workers to equal pay for work of equal value" as well as that of children, young persons and women to protection in employment (the latter group in connection with pregnancy and childbirth), and rights for migrant workers. Article 5 CERD does not merely require Contracting States to eliminate race discrimination in their own practices but also obliges them to prohibit race discrimination "in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of economic, social and cultural rights," in particular, employment rights including rights to "just and favourable conditions of work", protection against unemployment, "just and favourable remuneration" and to form and join trade unions. See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[86] Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
[87] SWM Broeks v. the Netherlands (172/1984).
[88] F.H. Zwaan-de Vries v. the Netherlands (182/1984).
[89] S.W.M. Broeks v. Netherlands (172/1984), paragraph 12.4.
[90] Human Rights Committee, General Comment No. 18 (1989).
[91] Id. In the Belgian Linguistics case, (No.2) (A/6) (1979-80) 1 E.H.R.R. 252 (ECHR), the European Court of Human Rights referred to the “aims and effects” of the measure challenged under Article14 of the European Convention, implying that indirect as well as direct discrimination could be contrary to the provision. And in Thlimmenos v Greece, 31 E.H.R.R. 15 (2001), the European Court ruled that discrimination contrary to the European Convention had occurred when a man who had been criminalised because of his refusal (as a Jehovah's Witness and, therefore, a pacifist) to wear a military uniform during compulsory military service, was subsequently refused access to the chartered accountancy profession because of a rule which barred those with criminal convictions from being chartered. According to the Court:
“[We have] so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification ... However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
See also Jordan v. United Kingdom (App. No. 24746/94), para.154. Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[92] The 1987 Constitutional provisions pertinent to social justice and the protection granted to Labor are:
[93] International School Alliance of Educators v. Quisumbing, G.R. No. 128845, 333 SCRA 13 (June 1, 2000).
[94] See Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, 175 SCRA 343 (July 14, 1989).
[95] Republic v. MERALCO, G.R. Nos. 141314 and 141369, 401 SCRA 130 (April 9, 2003).
[96] Sanders v. Veridiano II, No. L-46930, 162 SCRA 88 (June 10, 1988).
[97] Republic v. MERALCO, G.R. Nos. 141314 and 141369, 401 SCRA 130 (April 9, 2003).
[98] Francisco v. House of Representatives, G.R. No. 160261, (November 10, 2003).
[99] Id.
[100] Joaquin G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 160 (2003).
[101] Globe-Mackay Cable and Radio Corp. v. NLRC, G.R. No. 82511, 206 SCRA 701 (March 3, 1992).
[102] Uy v. COA, G.R. No. 130685, 328 SCRA 607 (March 21, 2000).
[103] Ibid.
[104] Calalang vs. Williams, No. 47800, 70 Phil. 726 (December 2, 1940).
[105] See Dumlao v. COMELEC, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); Peralta v. Comelec, Nos. L-47771, L-47803, L-47816, L-47767, L-47791, and L-47827, 82 SCRA 30 (March 11, 1978); Felwa v. Salas, No. L-26511, 18 SCRA 606 (October 29, 1966); Rafael v. Embroidery and Apparel Control and Inspection Board, No. L-19978, 21 SCRA 336, (September 29, 1967); People v. Carlos, No. L-239, 78 Phil. 535 (June 30, 1947); and Ichong, etc., et.al. v. Hernandez, etc. and Sarmiento, No. L-7995, 101 Phil. 1155 (May 31, 1957).
[106] Belarmino v. Employees’ Compensation Commission, G.R. No. 90204, 185 SCRA 304 (May 11, 1990).
[107] Javellana v. The Executive Secretary, No. L-36142, L-36164, L-36165, L-36236 and L-36283, 50 SCRA 30 (March 31, 1973).
[108] 1987 Constitution, Article II, Section 9.
CHICO-NAZARIO, J.:
Does Sec. 15(c), Article II, Republic Act No. 6753,[1] which allows the exemption of BSP employees occupying salary grade (SG) 20 and above from the coverage of Rep. Act No. 6758[2] result in a denial of petitioner’s constitutional right to equal protection of the law?
I submit that it does and said provision should therefore be declared unconstitutional on the ground that the division between BSP employees covered from SG 19 down and from SG 20 up is purely arbitrary. Even given the wide discretion vested in Congress to make classifications, it is nonetheless clear that the lawmaking body abused its discretion in making such classification.
It is not disputed that all that is required for a valid classification is that it must be reasonable, i.e., that it must be based on substantial distinctions which make for real differences; it must be germane to the purpose of the law; it must not be limited to existing conditions and it must apply equally to each member of the class.[3]
In the instant case, the classification was justified on the need of the BSP to compete in the labor market for economists, accountants, lawyers, experts in security, printing, commercial and rural banking, financial intermediation fund management, and other highly technical and professional personnel,[4] which it could not do unless personnel occupying top positions are exempted from the coverage of Rep. Act No. 6758, the Salary Standardization Law.
Under Rep. Act No. 6758, however, professional supervisory positions are covered by SG 9 to SG 33 which includes:
Economists, accountants, lawyers and other highly technical and professional personnel are covered under SG 9 to 29 as already adverted to.
Classification in law is the grouping of persons/objects because they agree with one another in certain particulars and differ from others in those same particulars. In the instant case, however, SG 20 and up do not differ from SG 19 and down in terms of technical and professional expertise needed as the entire range of positions all “require intense and thorough knowledge of a specialized field usually acquired from completion of a bachelor’s degree or higher courses.”
Consequently, if BSP needs an exemption from Rep. Act No. 6758 for key positions in order that it may hire the best and brightest economists, accountants, lawyers and other technical and professional people, the exemption must not begin only in SG 20.
Under the circumstances, the cut-off point, the great divide, between SG 19 and 20 is entirely arbitrary as it does not have a reasonable or rational foundation. This conclusion finds support in no less than the records of the congressional deliberations, the bicameral conference committee having pegged the cut-off period at SG 20 despite previous discussions in the Senate that the “executive group” is “probably” SG 23 and above.[7]
Moreover, even assuming that the classification is reasonable, nonetheless, its continued operation will result in hostile discrimination against those occupying grades 19 and below.
As pointed out by Mr. Justice Puno, some other government corporations, by law, now exempt all their employees from the coverage of Rep. Act No. 6758. BSP employees occupying SG 19 and below, however, shall remain under Rep. Act No. 6758 considering the rule that the subject classification, to be valid, must not be limited only to conditions existing as of the time the law was passed. Thus, while BSP employees from SG 19 down will continue to be covered under Rep. Act No. 6758, other government employees of the same class and occupying the same positions in government corporations will be exempt.
I therefore concur with Justice Puno in that respect and, considering his thorough discussion, I have nothing more to add thereto.
[1] New Central Bank Act.
[2] Salary Standardization Law.
[3] People v. Vera, 65 Phil. 56.
[4] V Records of the House of Representatives, 9th Congress, 1st Session 783 (31 March 1993) at 166.
[5] Section 5(a), Rep. Act No. 6758.
[6] Sections 7 and 8, ibid.
[7] IV Records of the Senate, 9th Congress, 1st Session 1086-87 (05 June 1993).
PANGANIBAN, J.:
With all due respect, I dissent. I believe that it would be uncalled for, untimely and imprudent for this Court to void the last proviso of the second paragraph of Section 15(c) of Chapter 1 of Article II of Republic Act (RA) 7653. In the first place, the assailed provision is not unconstitutional, either on its face or as applied, and the theory of relative constitutionality finds no application to the case at bar. In the second place, a becoming respect on the part of this Court for Congress as a coequal and coordinate branch of government dictates that Congress should be given ample opportunity to study the situation, weigh its options and exercise its constitutional prerogative to enact whatever legislation it may deem appropriate to address the alleged inequity pointed out by petitioner.
For the record, I am not against the exemption from the Salary Standardization Law of the Bangko Sentral ng Pilipinas (BSP) rank and file employees (with Salary Grade 19 and below). Neither am I against increases in their pay. I simply submit that (1) the factual milieu of this case does not show a denial of equal protection, (2) the theory of relative constitutionality does not come into play, and (3) petitioner should have addressed its plaint, not to this Court, but to Congress in the first instance. I am confident that given sufficient opportunity, the legislature will perform its constitutional duty accordingly. Hence, there is no need or warrant for this Court to intervene in legislative work.
Theory of Relative Constitutionality
Not Applicable to Extraneous Circumstances
The ponencia advocates the application of the theory of relative constitutionality to the present case. The theory says that a statute valid at one time may become unconstitutional at another, because of altered circumstances or changed conditions
that make the practical operation of such a statute arbitrary or
confiscatory. Thus, the provisions of that statute, which may be valid as applied to one set of facts but invalid as applied to another, cannot be merely compared with those applicable under the Constitution.
From the manner in which it has been utilized in American and Philippine jurisprudence, however, this novel theory finds relevance only when the factual situation covered by an assailed law changes, not when another law is passed pertaining to subjects not directly covered by the former. Thus, the theory applies only when circumstances that were specifically addressed upon the passage of the law change. It does not apply to changes or alterations extraneous to those specifically addressed. To prove my point, allow me then to tackle seriatim the cases relied upon in the ponencia.[1]
Cited American Cases
Not Applicable to and
Not in Pari Materia with
Present Facts
Medill.[2] The constitutionality issue in Medill v. State was raised by a bankruptcy trustee in regard to a statute exempting damages that were awarded to the claimants who suffered as a result of an automobile accident.[3] Specifically, the contested provision exempted from “attachment, garnishment, or sale on any final process issued from any court” (1) general damages and (2) future special damages awarded in rights of action filed for injuries that were caused to the person of a debtor or of a relative.[4]
The Supreme Court of Minnesota said that the general damages portion of the right of action filed by claimants for personal injuries sustained in fact represented the monetary restoration of the physically and mentally damaged person; hence, claims for such damages could never constitute unreasonable amounts for exemption purposes.[5] Such claims were thus fully exempt. It added that the legislature had assigned the role of determining the amounts that were reasonable to the state’s judicial process.[6]
While a statute may be constitutional and valid as applied to one set of facts and invalid in its application to another, the said Court limited its discussion only to the set of facts as presented before it[7] and held that the statute was “not unconstitutional.”[8] Distinguishing the facts of that case from those found in its earlier rulings,[9] it concluded that -- by limiting the assets that were available for distribution to creditors[10] -- the contested provision therein was a bankruptcy relief for protecting not only human capital,[11] but also the debtor’s fundamental needs.
Cook.[12] The bankruptcy trustee in In re Cook also objected to the same statutory exemption, inter alia, asserted by the debtors in another personal injury claim.
The US Bankruptcy Court, following Medill, held that such exemption was “violative of x x x the Minnesota Constitution,”[13] as applied to pre-petition special damages,[14] but not as applied to general damages.[15] The statute did not provide for any limitation on the amount of exemption as to the former type of damages.[16] Neither did it set any objective criteria by which the bankruptcy court may limit its size.[17]
Nashville.[18] The plaintiff in Nashville v. Walters questioned the constitutionality of a Tennessee statute imposing upon railroad companies one half of the total cost of grade separation in every instance that the state’s Highway Commission issued an order for the elimination of a grade crossing. The plaintiff rested its contention not on the exercise of police power that promoted the safety of travel, but on the arbitrariness and unreasonableness of the imposition that deprived it of property without due process of law.[19]
Reversing the judgment that the Supreme Court of Tennessee had rendered against the plaintiff, the US Supreme Court however did not declare the statute unconstitutional.[20] Instead, it remanded the case, because the determination of facts showing arbitrariness and unreasonableness should have been made by the Tennessee Supreme Court in the first place.[21] It enumerated the revolutionary changes incident to transportation wrought in the 1930s by the widespread introduction of motor vehicles; the assumption by the federal government of the functions of a road builder; the resulting depletion of rail revenues; the change in the character, construction and use of highways; the change in the occasion for the elimination of grade crossings, and in the purpose and beneficiaries of such elimination; and the change in the relative responsibility of railroads and vehicles moving on the highways.[22] In addition, it held that the promotion of public convenience did not justify requiring a railroad company -- any more than others -- to spend money, unless it was shown that the duty to provide such convenience rested upon that company.[23] Providing an underpass at one’s own expense for private convenience, and not primarily as a safety measure, was a denial of due process.[24]
Atlantic.[25] In Atlantic v. Ivey, the plaintiff filed an action for damages against the railroad company for the killing of a cow on an unfenced right of way of the railway. The defendant pointed out that the original Florida Act of 1889 and its later amendments in the 1940s had required railroad companies to fence their tracks for the protection and safety of the traveling public and their property against livestock roaming at large. Thus, the defendant averred that -- without imposing a similar fencing requirement on the owners of automobiles, trucks and buses that carry passengers upon unfenced public highways of the state where such vehicles operated -- the equal protection guarantees of the state and federal constitutions would be violated.[26]
Reversing the lower court’s judgment for the plaintiff, the Supreme Court of Florida held that the application of the contested statutes under then existing conditions was violative of the equal protection clause.[27] Citing Nashville, that Court took judicial notice of the fact that there were no motor carriers on public roads when the statutes were originally enacted. It also reasoned that the statutes were enacted in the exercise of the state’s police power[28] and were intended for the protection of everyone against accidents involving public transportation. Although motor-driven vehicles and railroad carriers were under a similar obligation to protect everyone against accidents to life and property when conducting their respective businesses, the hazard of accidents by reason of cattle straying onto the line of traffic of motor-driven vehicles was greater than that which arose when cattle strayed onto the line of traffic of railroad carriers.[29] Yet the burden of expenses and penalties that were rendered in favor of individuals who were neither shippers nor passengers was imposed only on railroad carriers.[30]
In addition, the railroad carriers would be held liable for attorney’s fees and double the value of the animals killed in their railways, without even requiring the plaintiffs who had sued them to prove the negligence of such carriers in operating their equipment.[31] Although it was argued that motor-driven vehicles had no authority to fence on state and county highways over which they operated, the legislature could nevertheless authorize and require them to provide similar protection; or, in default thereof, to suffer similar penalties that were incidental to using such public roads for generating profit and serving the public.[32]
Louisville.[33] The plaintiff in Louisville v. Faulkner also filed an action against defendant-railroad company to recover the value of her mule that had strayed from her premises and got struck and killed by the company’s train.[34] The judgment of the lower court for the plaintiff was based on the fact that the defendant did not offer any evidence to rebut the prima facie presumption of the latter’s negligence under Kentucky statutes.[35]
The Court of Appeals of Kentucky held the contested provision unconstitutional and reversed the said judgment.[36] Citing both Nashville and Atlantic, the appellate court said that because such legislation applied to all similar corporations and was aimed at the safety of all persons on a train and the protection of their property, it was sustained from its inception in 1893; however, under changed conditions, it could no longer be so. The court recognized the fact that, in the 1950s, the inauguration and development of transportation by motor vehicles on public highways created even greater risks, not only to the occupants of such vehicles but also to domestic animals.[37] Yet, the operators of these vehicles were not subjected to the same extraordinary legal responsibility of proving that for the killing of those animals on public roads, they were free from negligence, unlike railroad companies that struck and killed such animals on private rights of way.[38]
Vernon.[39] The plaintiff in Vernon v. City of Mount Vernon sought to declare unconstitutional a city zoning ordinance which had limited the business use of its realty, locally known as the “Plaza,” only to the parking of automobiles and its incidental services.[40]
The Court of Appeals of New York ruled that the ordinance was unconstitutional.[41] That ruling also affirmed the unanimous judgment earlier rendered in favor of the plaintiff. Again citing Nashville, the New York court ruled in the main that, no matter how compelling and acute the community traffic problem might be as to reach a strangulation point, the solution did not lie in placing an undue and uncompensated burden on a landowner in the guise of a regulation issued for a public purpose.[42] Although for a long time the plaintiff’s land had already been devoted to parking, the ordinance that prohibited any other use for it was not “a reasonable exercise of the police power.”[43]
While the city’s common council had the right to pass ordinances respecting the use of property according to well-considered and comprehensive plans designed to promote public health, safety and general welfare, the exercise of such right was still subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably. Thus, the zoning ordinance could not preclude the use of property for any purpose for which it was reasonably adapted.[44] Although valid when adopted in 1927, the ordinance was stricken down, because its operation under changed conditions in the 1950s proved confiscatory, especially when the value of the greater part of the land -- to be used, for instance, in the erection of a retail shopping center -- was destroyed.[45]
Finally, Murphy v. Edmonds.[46] An automobile driver and her husband brought action against a tractor-trailer driver and his employer and sought damages for the severe injuries she had sustained in a collision. Raised in issue mainly was the constitutionality of the statutory cap on noneconomic damages in personal injury actions.[47]
Affirming the judgment of the Court of Special Appeals rejecting all challenges to the validity of the law, the Court of Appeals of Maryland held that there was no irrationality, arbitrariness, or violation of equal protection in the legislative classification drawn between (1) the less seriously injured tort claimants whose noneconomic damages were less than the statutory cap; and (2) the more seriously injured tort claimants whose noneconomic damages were greater than, and thus subject to, the statutory cap.[48] Although no express equal protection clause could be found in Maryland’s Constitution, the due process clause therein nevertheless embodied equal protection to the same extent as that found in the Fourteenth Amendment[49] of the federal Constitution.[50]
Indeed, the right to recover full damages for a noneconomic injury was recognized by common law even before the adoption of the state’s Constitution, but the said court declared that there was no vested interest in any rule ordained by common law.[51] Concluding that only the traditional “rational basis test” should be used, the appellate court also rejected the lower court’s view of the right to press a claim for pain and suffering as an “important right” requiring a “heightened scrutiny test” of the legislative classification.[52] Under the “rational basis test,” such legislative classification enjoyed a strong presumption of constitutionality and, not being clearly arbitrary, could not therefore be invalidated.[53]
Moreover, the law was an economic response to a legislatively perceived crisis concerning not only the availability, but also the cost of liability insurance in the state.[54] Putting a statutory cap on noneconomic damages was “reasonably related to a legitimate legislative objective,”[55] for it led to a greater ease in the calculation of insurance premiums, thus making the market more attractive to insurers. Also, it ultimately reduced the cost of such premiums and made insurance more affordable to individuals and organizations that perform needed medical services.[56]
From the foregoing discussion, it is immediately evident that not one of the above-cited cases is either applicable to or in pari materia with the present case.
Medill not only upheld the constitutionality of the contested provision therein, but also categorically stated that the peculiar facts of the case prompted such declaration. General damages were declared exempt; the law allowing their exemption was constitutional. Cook simply affirmed Medill when the same contested provision was applied to an issue similar to that which was raised in the latter case, but then declared that provision unconstitutional when applied to another issue. Thus, while general damages were also declared exempt, the claims for special damages filed prior to the filing of a petition for relief were not, and the law allowing the latter’s exemption was unconstitutional.
The court’s action was to be expected, because the issue on special damages in Cook was not at all raised in Medill, and there was no precedent on the matter in Minnesota, other than the obiter dictum -- if it can be called one -- in the latter case.[57] Had that issue been raised in Medill, a similar conclusion would inevitably have been reached. In fact, that case already stated that while the court “need not decide whether special damages incurred prior to judgment x x x [were] to be exempt in order to decide the question”[58] on general damages raised therein, it felt that exempting special damages appeared reasonable and likely to be applied, following an earlier ruling in another case.[59]
Moreover, the facts of both Medill and Cook are not at all akin to so-called “changed conditions” prompting the declarations of constitutionality in the former and unconstitutionality in the latter. Such “altered circumstances” or “changed conditions” in these two cases refer to the non-exemption of special damages -- a subject matter distinct and separable, although covered by the same assailed statute. In fact, Cook precisely emphasized that “where a statute is not inherently unconstitutional, it may be found constitutional as applied to some separable subject matters, and unconstitutional as applied to others.”[60] In other words, it was the application of the contested provision therein to an entirely different and separable subject matter -- not the contested provision itself --that was declared unconstitutional, but the statute itself was not inherently unconstitutional to begin with.
Equally important, Nashville skirted the issue on constitutionality. The “changed conditions” referred to in that case, as well as in Atlantic and Louisville, were the revolutionary changes in the mode of transportation that were specifically covered by the statutes respectively imposing additional costs upon railroad companies only, requiring the fencing of their tracks, or solely compelling them to present evidence to rebut the presumption of their negligence. In Vernon, these “changed conditions” were deemed to be the economic changes in the 1950s, through which the normal business use of the land was unduly limited by the zoning ordinance that was intended to address the acute traffic problem in the community.
Nashville simply took judicial notice of the change in conditions which, together with the continued imposition of statutory charges and fees, caused deprivation of property without due process of law. Atlantic, Louisville and Vernon all relied upon Nashville, but then went further by rendering their respective contested provisions unconstitutional, because -- in the application of such provisions under “changed conditions” -- those similarly situated were no longer treated alike.
Finally, Murphy -- obviously misplaced because it made no reference at all to the quoted sentence in the ponencia -- even upheld the validity of its contested provision. There was no trace, either, of any “changed conditions.” If at all, the legislative classification therein was declared constitutional, because it was in fact a valid economic response to a legislatively perceived crisis concerning the availability and cost of liability insurance.
In the present case, no “altered circumstances” or “changed conditions” in the application of the assailed provision can be found. It verily pertains to only one subject matter, not separable subject matters as earlier pointed out in both Medill and Cook. Hence, its application remains and will remain consistent. Not inherently unconstitutional to begin with, it cannot now be declared unconstitutional. Moreover, herein petitioner miserably fails to demonstrate -- unlike in Nashville, Atlantic, Louisville, and Vernon -- how those similarly situated have not been treated alike in the application of the assailed provision.
Ponencia’s Reference to
“Changed Conditions” Misplaced
From Nashville to Murphy, it can be seen that all the contested statutes were passed in the exercise of police power -- the inherent power of the State to regulate liberty and property for the promotion of the general welfare.[61] The police measure may be struck down when an activity or property that ought to be regulated does not affect the public welfare; or when the means employed are not reasonably necessary for the accomplishment of the statute’s purpose, and they become unduly oppressive upon individuals.[62] As Justice Brandeis stresses in Nashville, “it may not be exerted arbitrarily or unreasonably.”[63]
In the case before us today, the assailed provision can be considered a police measure that regulates the income of BSP employees. Indisputably, the regulation of such income affects the public welfare, because it concerns not only these employees, but also the public in general -- from whose various credits the banks earn their income, the CB generates its revenues, and eventually these employees get their salaries and other emoluments.
Additionally, with the passage of RAs 6758 and 7653, the means employed by the State to accomplish its objectives are not unduly oppressive. They are in fact reasonably necessary, not only to attract the best and brightest bank regulatory personnel, but also to establish professionalism and excellence within the BSP in accordance with sound principles of management. Nothing, therefore, is arbitrary in the assailed provision; it cannot be stricken down.
With due respect, the ponencia’s reference to “changed conditions” is totally misplaced. In the above-cited US cases, this phrase never referred to subsequent laws or executive pronouncements, but rather to the facts and circumstances that the law or ordinance specifically addressed upon its passage or adoption. A statute that is declared invalid because of a change in circumstances affecting its validity belongs only to a class of emergency laws.[64] Being a manifestation of the State’s exercise of its police power, it is valid at the time of its enactment.
In contrast thereto, RA 7653 cannot be regarded as an emergency measure that is merely temporary in operation. It is not even a statute limited to the exigency that brought it about. The facts and circumstances it specifically addressed upon its passage have not been shown to have changed at all. Hence, the assailed provision of such a declaratory statute cannot be invalidated.
Unlike congested traffic or motor-driven vehicles on public roads, the payment of salaries at differing scales in various GFIs vis-à-vis in the BSP, is not such a change in conditions as would cause deprivation of property without due process of law. Petitioner’s members have not been deprived of their right to income as mandated by law. They have not received less than what they were entitled to ever since RA 7653 was passed eleven years ago.
To repeat, the factual situation that the assailed provision specifically addressed upon passage of this law has not changed. The same substantive rights to a competitive and structured human resource development program existing then still exist now. Only the laws external to and not amendatory of this law did. Even if these new laws were to be considered as “changed conditions,” those who have been affected in the BSP (as will be shown later) are not at all similarly situated as those in the GFIs to compel their like treatment in application.
In addition, the rulings in all the above-cited American cases --although entitled to great weight[65] -- are merely of persuasive effect in our jurisdiction[66] and cannot be stare decisis.[67] These are not direct rulings of our Supreme Court[68] that form part of the Philippine legal system.[69]
Granting gratia argumenti that the cited cases are to be considered binding precedents in our jurisdiction, Nashville -- the only one federal in character -- does not even make a categorical declaration on constitutionality. Furthermore, Murphy maintains that “[s]imply because a legal principle is part of the common law x x x does not give it any greater degree of insulation from legislative change.”[70] Common law, after all, is “a growing and ever-changing system of legal principles and theories x x x.”[71]
Every statute is presumed constitutional.[72] This axiom reflects the respect that must be accorded to the wisdom, integrity and patriotism of the legislature that passed it and to the executive who approved it.[73] Understandably, therefore, the judiciary should be reluctant to invalidate laws.[74] Medill precisely emphasizes that the “court’s power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”[75] Although that case continues by saying that unless it is inherently unconstitutional, a law “must stand or fall x x x not upon assumptions” the court may make, the ponencia is still dauntless in relying thereon to support its arguments.
Rutter Does Not Even Apply
Again with due respect, the ponencia’s citation of a local case, Rutter,[76] is also inappropriate. In the said case, appellant instituted an action to recover the balance, and interest thereon, of a contract of sale entered into barely four months prior to the outbreak of the Second World War.[77] The lower court, however, rendered judgment[78] for appellee who set up as defense[79] the moratorium clause embodied in RA 342.[80] The lower court reasoned further that the obligation sought to be enforced was not yet demandable under that law.[81]
Reversing the judgment, this Court invalidated[82] the moratorium clause,[83] not because the law was unconstitutional, but because both its continued operation and enforcement had become unreasonable and oppressive under postwar circumstances of observable reconstruction, rehabilitation and recovery of the country’s general financial condition.[84] The forced vigil suffered by prewar creditors was not only unwittingly extended from eight to twelve years, but was also imposed without providing for the payment of the corresponding interest in the interim.[85]
Thus, the success of their collection efforts, especially when their credits were unsecured, was extremely remote.[86] Moreover, the settlement of claims filed with the United States-Philippine War Damage Commission was not only uncertain but was also practically futile, for it depended entirely on the appropriations to be made by the US Congress.
The contested clause in Rutter was definitely a remedial measure passed to accord prewar debtors who suffered the ravages of war an opportunity to rehabilitate themselves within a reasonable time and to pay their prewar debts thereafter, thus preventing them from being victimized in the interim by their prewar creditors. The purpose having been achieved during the eight-year period, there was therefore no more reason for the law. Cessante ratione legis cessat et ipsa lex. When the reason for the law ceases, the law itself ceases. But it does not become unconstitutional.
The altered circumstances or changed conditions in Rutter were specifically the very circumstances that the law addressed at its passage; they were not at all extraneous circumstances like subsequent laws or executive pronouncements. The eight-year moratorium period having lapsed, the debtors’ concerns had been adequately addressed. It was now the turn of the creditors to be protected for the pre-war loans they granted.
In stark contrast, the contested proviso in the instant case is not a remedial measure. It is not subject to a period within which a right of action or a remedy is suspended. Since the reason for the law still subsists, the law itself including the challenged proviso must continue in existence and operation.
Relative Constitutionality
Not Based on Positive Law
Applying the concept of relative constitutionality strongly advocated in the ponencia, therefore, not only goes beyond the parameters of traditional constitutionalism, but also finds no express basis in positive law.[87] While it has been asserted that “a statute valid when enacted may become invalid by change in conditions to which it is applied,”[88] the present case has shown no such change in conditions that would warrant the invalidation of the assailed provision if applied under such conditions. Hence, no semblance of constitutional impuissance, other than its conjured possibility, can be seen. In a constitutional order that commands respect for coequal branches of government, speculation by the judiciary becomes incendiary and deserves no respectable place in our judicial chronicles.
The ponencia further contends that the principles of international law can operate to render a valid law unconstitutional. The generally accepted definition states that international law is a body of legal rules that apply between sovereign states and such other entities as have been granted international personality.[89] Government employees at the BSP with salary grades 19 and below are not such entities vested with international personality; any possible discrimination as to them, in the light of the principles and application of international law would be too far-fetched.
The dangerous consequences of the majority’s Decision in the present case cannot and should not be ignored. Will there now be an automatic SSL exemption for employees of other GFIs and financial regulatory agencies? Will such exemption not infringe on Congress’ prerogative? The ponencia overlooks the fact that the Bangko Sentral is not a GFI, but a regulatory body of GFIs and other financial/banking institutions. Therefore, it should not be compared with them. There is no parity. The Bangko Sentral is more akin to the Insurance Commission, the National Telecommunications Commission, and the Energy Regulatory Commission. Should not more appropriate comparisons be made with such regulatory bodies and their employees?
Respect for
Coequal Branch
The trust reposed in this Court is “not to formulate policy but to determine its legality as tested by the Constitution.”[90] “It does not extend to an unwarranted intrusion into that broad and legitimate sphere of discretion enjoyed by the political branches to determine the policies to be pursued. This Court should ever be on the alert lest, without design or intent, it oversteps the boundary of judicial competence.”[91] Judicial activism should not be allowed to become judicial exuberance. “As was so well put by Justice Malcolm: ‘Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act.’”[92]
Since Congress itself did not commit any constitutional violation or gravely abusive conduct when it enacted RA 7653, it should not be summarily blamed for what the ponencia calls “altered circumstances.”[93] Congress should be given the opportunity to correct the problem, if any. I repeat, I am not against exemption from the SSL of Bangko Sentral employees with salary grades 19 and below. Neither am I against increases in their pay. However, it is Congress, not this Court, that should provide a solution to their predicament, at least in the first instance.
The remedy against any perceived legislative failure to enact corrective legislation is a resort, not to this Court, but to the bar of public opinion. The electorate can refuse to return to Congress members who, in their view, have been remiss in the discharge of their constitutional duties.[94] Our Constitution presumes that, absent any inference of antipathy, improvident legislative decisions “will eventually be rectified by the democratic processes;”[95] and that judicial intervention is unwarranted, no matter how unwisely a political branch may have acted.[96]
It is only the legislature, not the courts, that “must be appealed to for the change.”[97] If, however, Congress decides to act, the choice of appropriate measure lies within its discretion. Once determined, the measure chosen cannot be attacked on the ground that it is not the best solution, or that it is unwise or inefficacious.[98] A law that advances a legitimate governmental interest will be sustained, even if it “works to the disadvantage of a particular group, or x x x the rationale for it seems tenuous.”[99] To compel this Court to make a more decisive but unnecessary action in advance of what Congress will do is a downright derogation of the Constitution itself, for it converts the judiciary into a super-legislature and invests it with a power that to it has never belonged.[100]
In the words of the great Sir William Blackstone, “there is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no[t].”[101] As Rousseau further puts it, “according to the fundamental compact, only the general will can bind the individuals, and there can be no assurance that a particular will is in conformity with the general will, until it has been put to the free vote of the people.”[102] Thus, instead of this Court invalidating a sovereign act, Congress should be given the opportunity to enact the appropriate measure to address the so-called “changed conditions.”
We cannot second-guess the mind of the legislature as the repository of the sovereign will. For all we know, amidst the fiscal crisis and financial morass we are experiencing, Congress may altogether remove the blanket exemption, put a salary cap on the highest echelons,[103] lower the salary grade scales subject to SSL exemption, adopt performance-based compensation structures, or even amend or repeal the SSL itself, but within the constitutional mandate that “at the earliest possible time, the Government shall increase the salary scales of x x x officials and employees of the National Government.”[104] Legislative reforms of whatever nature or scope may be taken one step at a time, addressing phases of problems that seem to the legislative mind most acute.[105] Rightly so, our legislators must have “flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.”[106] Where there are plausible reasons for their action, the Court’s “inquiry is at an end.”[107]
Under the doctrine of separation of powers and the concomitant respect for coequal and coordinate branches of government, the exercise of prudent restraint by this Court would still be best under the present circumstances.
Not Grossly Discriminatory
There is no question that Congress neither violated the Constitution nor gravely abused its discretion when it enacted “The New Central Bank Act” to establish and organize the BSP in 1993.[108] Indeed, RA 7653 is a valid legislative measure. Even the majority concedes that in enacting that law, Congress was well within its legislative powers. However, the ponencia argues that the subsequent enactment of laws granting “blanket exemption” from the coverage of the SSL of all employees in seven GFIs[109] has made the contested proviso “grossly discriminatory in its operation”[110] and therefore unconstitutional.
This conclusion, to my mind, is a non sequitur. The mere possible effect of related or unrelated laws on another law does not ipso facto make the latter unconstitutional. Besides, as already discussed, the theory of relative constitutionality is plainly inapplicable to the present facts. Moreover, the ponencia has assumed without proof that the BSP rank and file employees are factually and actually similarly situated as the rank and filers of Land Bank, SSS, GSIS, etc., and it is clear from the discussion in Mme. Justice Carpio Morales’ Dissenting Opinion that that is not really the case. In fact, there exist some substantial differences in scope of work, job responsibilities and so forth that would negate the ponencia’s assumption
No Indicium of Urgency
Other than its bare assertion that the continued implementation of the assailed provision[111] would cause “irreparable damage and prejudice”[112] to its members, petitioner also fails to show a minimum indicium of such extreme urgency as would impel this Court to second-guess Congress.
Briefly, petitioner contends that (1) the creation of two classes of employees within the BSP based on the salary grade corresponding to their positions[113] is unreasonable, arbitrary and capricious class legislation;[114] and (2) the law itself discriminates against rank and file employees of the BSP vis-à-vis those of GFIs.[115]
These contentions are utterly unsubstantiated. They find no support in law for granting the relief prayed for.
While it is true that all employees of the BSP are appointed under the authority of the Monetary Board, observe the same set of office rules and regulations, and perform their work in practically the same offices,[116] it is equally true that the levels of difficulty and responsibility for BSP employees with salary grades 19 and below are different from those of other BSP employees with salary grades 20 and above. All those classes of position belonging to the Professional Supervisory Category[117] of the Position Classification System[118] under RA 6758, for instance, are obviously not subjected to the same levels of difficulty, responsibility, and qualification requirements as those belonging to the Professional Non-Supervisory Category,[119] although to both categories are assigned positions that include salary grades 19 and 20.[120] To assert, as petitioner does, that the statutory classification is just an “artifice based on arbitrariness,”[121] without more, is nothing more than throwing a few jabs at an imaginary foe.
In like manner, petitioner’s denunciation of the proviso for allegedly discriminating against its members vis-à-vis the rank and filers of other GFIs ignores the fact that the BSP and the GFIs cited in the ponencia do not belong to the same category of government institutions, although it may be said that both are, broadly speaking, “involved” in banking and finance.[122] While the former performs primarily governmental or regulatory functions, the latter execute purely proprietary ones.
Moreover, the extent of damage or prejudice inflicted upon the BSP rank and file employees as a result of the proviso is not shown by any evidence on record. Indeed, neither the petitioner nor the ponencia demonstrate the injuries sustained.[123]
There is no indication whatsoever of the precise nature and extent of damages caused or to be caused to petitioner’s members by the continued implementation of such provision. Surely, with no leg to stand on, the allegation of petitioner that there is great disparity in compensation, allowances or benefits, cannot be considered to be stigmatizing and wounding to the psyche of thousands of its members.[124] In fact, BSP employees, in general, also share the same tribulations of workers and employees in other regulatory government offices.[125] Not even petitioner’s broad and bare claim of “transcendental importance”[126] can ipso facto generate alacrity on the part of this Court.
In the United States more than sixty years ago, Justice Brandeis delineated the famous canons of avoidance under which their Supreme Court had refrained from passing upon constitutional questions. One such canon is that the Court must “not anticipate a question of constitutional law in advance of the necessity of deciding it x x x. It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”[127] In addition, the Court must not “pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”[128]
Applying to this case the contours of constitutional avoidance Brandeis brilliantly summarized, this Court may choose to ignore the constitutional question presented by petitioner, since there is indeed some other ground upon which this case can be disposed of -- its clear lack of urgency, by reason of which Congress should be allowed to do its primary task of reviewing and possibly amending the law.
Taking cognizance of this case and disposing of, or altogether ignoring, the constitutional question leads us to the same inevitable conclusion: the assailed provision should not be declared “unconstitutional, unless it is clearly so.”[129] Whichever path is chosen by this Court, I am of the firm belief that such provision cannot and should not be declared unconstitutional. Since the authority to declare a legal provision void is of a “delicate and awful nature,”[130] the Court should “never resort to that authority, but in a clear and urgent case.”[131] If ever there is doubt -- and clearly there is, as manifested herein by a sharply divided Court -- “the expressed will of the legislature should be sustained.”[132]
Indeed, this Court is of the unanimous opinion that the assailed provision was at the outset constitutional; however, with recent amendments to related laws,[133] the majority now feels that said provision could no longer pass constitutional muster. To nail my colors to the mast, such proclivity to declare it immediately unconstitutional not only imprudently creeps into the legislative sphere, but also sorely clings to the strands of obscurantism. Future changes in both legislation and its executive implementation should certainly not be the benchmark for a preemptive declaration of unconstitutionality, especially when the said provision is not even constitutionally infirm to begin with.
Moreover, the congressional enactment into law of pending bills[134] on the compensation of BSP employees -- or even those related thereto -- will certainly affect the assailed provision. This Court should bide its time, for it has neither the authority nor the competence to contemplate laws, much less to create or amend them.
Given the current status of these pending bills, the arguments raised by petitioner against the assailed provision become all the more tenuous and amorphous. I feel we should leave that provision untouched, and instead just accord proper courtesy to our legislators to determine at the proper time and in the manner they deem best the appropriate content of any modifications to it. Besides, there is an omnipresent presumption of constitutionality in every legislative enactment.[135] No confutation of the proviso was ever shown before; none should be considered now.
Congress Willing
to Perform Duty
Far from being remiss in its duty, Congress is in fact presently deliberating upon HB 00123, which precisely seeks to amend RA 7653 by, inter alia, exempting from the SSL[136] all positions in the BSP.[137] Accordingly, this Court should not preempt Congress, especially when the latter has already shown its willingness and ability to perform its constitutional duty.[138] After all, petitioner has not proven any extreme urgency for this Court to shove Congress aside in terms of providing the proper solution. Lawmaking is not a pool this Court should wade into.
The Monetary Board has enough leeway to devise its own human resource management system, subject to the standards of professionalism and excellence that are in accordance with sound principles of management.[139] This system must also be in close conformity to the principles provided for, as well as with the rates prescribed, under RA 6758.
More specifically, there should be “equal pay for substantially equal work” and any differences in pay should be based “upon substantive differences in duties and responsibilities, and qualification requirements of the positions.”[140] In determining the basic compensation of all government personnel, due regard should be given by the said Board to the prevailing rates for comparable work in the private sector.[141] Furthermore, the reasonableness of such compensation should be in proportion to the national budget[142] and to the possible erosion in purchasing power as a result of inflation and other factors.[143] It should also abide by the Index of Occupational Services prepared by the Department of Budget and Management in accordance with the Benchmark Position Schedule and other factors prescribed thereunder.[144]
This Court has not been apprised as to how precisely the human resource management system of the BSP has been misused. In the absence of any evidence to the contrary, it is therefore presumed that the law has been obeyed,[145] and that official duty has been regularly performed[146] in implementing the said law. Where additional implementing rules would still be necessary to put the assailed provision into continued effect, any “attack on their constitutionality would be premature.”[147]
Surely, it would be wise “not to anticipate the serious constitutional law problems that would arise under situations where only a tentative judgment is dictated by prudence.”[148] Attempts “at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.”[149] A judicial determination is fallow when inspired by purely cerebral casuistry or emotional puffery, especially during rowelling times.
Even if the matter of urgency is set aside for the nonce, and the Court exercises its power of judicial review[150] over acts of the legislature,[151] I respectfully submit that the Petition should still be dismissed because the assailed provision’s continued operation will not result in a denial of equal protection.
Neither the passage of RA 7653 nor its implementation has been “committed with grave abuse of discretion amounting to lack or excess of jurisdiction.”[152] Every statute is intended by the legislature to operate “no further than may be necessary to effectuate”[153] its specific purpose. In the absence of a clear finding as to its arbitrary, whimsical or capricious application, the assailed provision cannot be struck down as violative of the fundamental law.
Moreover, “[u]nder the ‘enrolled bill doctrine,’[154] the signing of a bill by the Speaker of the House and the Senate President and the certification of the [s]ecretaries of both Houses of Congress that it was passed, are conclusive”[155] “not only of its provisions but also of its due enactment.”[156] It is therefore futile to welter in the thought that the original and amended versions of the corresponding bill have no reference to the proviso in question.[157] Floor deliberations are either expansive or restrictive. Bills filed cannot be expected to remain static; they transmute in form and substance. Whatever doubts there may be as to the validity of any provision therein must necessarily be resolved in its favor.
Brief Background of the
Equal Protection Clause
Despite the egalitarian commitment in the Declaration of Independence that “all men are created equal,” the framers of the original Constitution of the United States omitted any constitutional rule of equal protection. Not until 1868, when the Fourteenth Amendment thereto was ratified by the legislatures of the several states of the Union,[158] did the concept of equal protection have a constitutional basis;[159] and not until the modern era did the United States Supreme Court give it enduring constitutional significance.
From its inception, therefore, the equal protection clause in “the broad and benign provisions of the Fourteenth Amendment”[160] already sought “to place all persons similarly situated upon a plane of equality and to render it impossible for any class to obtain preferred treatment.”[161] Its original understanding was the proscription only of certain discriminatory acts based on race,[162] although its proper construction, when called to the attention of the US Supreme Court in the Slaughter-House Cases, first involved exclusive privileges.[163] Eventually, other disfavored bases of governmental action were identified. Labeled as morally irrelevant traits, gender, illegitimacy and alienage were included in this list.
Today, this clause is “the single most important concept x x x for the protection of individual rights.”[164] It does not, however, create substantive rights.[165] Its guaranty is merely “a pledge of the protection of equal laws.”[166] Its “promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”[167]
As mirrored in our Constitution,[168] this clause enjoys the interpretation given by its American framers[169] and magistrates. In fact, a century ago, this Court already enunciated that “the mere act of cession of the Philippines to the United States did not extend the [US] Constitution here, except such parts as fall within the general principles of fundamental limitations in favor of personal rights formulated in the [US] Constitution and its amendments, and which exist rather by inference and the general spirit of the [US] Constitution, and except those express provisions of the [US] Constitution which prohibit Congress from passing laws in their contravention under any circumstances x x x.”[170] Being one such limitation in favor of personal rights enshrined in the Fourteenth Amendment, equal protection is thus deemed extended to our jurisdiction.
Notably, Justice Malcolm himself said that the constitutional law of Spain, then in effect, was “entirely abrogated by the change of sovereignty.”[171] As a result, it was the constitutional law of the United States that was transposed to our fledgling political and legal system. To be precise, the principal organic acts of the Philippines included President McKinley’s Instructions to the Second Philippine Commission of April 7, 1900, to which this Court recognized the United States Constitution as a limitation[172] upon the powers of the military governor then in charge of the Philippine Islands.[173]
In a catena of constitutional cases decided after the change in sovereignty, this Court consistently held that the equal protection clause requires all persons or things similarly situated to “be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects x x x should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.”[174]
Being a constitutional limitation first recognized[175] in Rubi[176] -- citing Yick Wo[177] -- as one “derived from the Fourteenth Amendment to the United States Constitution,”[178] this clause prescribes certain requirements for validity: the challenged statute must be applicable to all members of a class, reasonable, and enforced by the regular methods of procedure prescribed, rather than by purely arbitrary means.[179] Its reasonableness must meet the requirements enumerated in Vera[180] and later summarized in Cayat.[181]
Three Tests
Passed by Assailed Provision
I respectfully submit that the assailed provision passes the three-tiered standard of review for equal protection that has been developed by the courts through all these years.
The Rational Basis Test
Under the first tier or the rational relationship or rational basis test, courts will uphold a classification if it bears a rational relationship to an accepted governmental end.[182] In other words, it must be “rationally related to a legitimate state interest.”[183] To be reasonable, such classification must be (1) based on substantial distinction that makes for real differences; (2) germane to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all members of the same class.[184]
Murphy states that when a governmental classification is attacked on equal protection grounds, such classification is in most instances reviewed under the standard rational basis test.[185] Accordingly, courts will not overturn that classification, unless the varying treatments of different groups are so unrelated to the achievement of any legitimate purpose that the courts can only conclude that the governmental actions are irrational.[186] A classification must “be reasonable, not arbitrary, and x x x rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”[187]
All these conditions are met in the present case. The retention of the best and the brightest officials in an independent central monetary authority[188] is a valid governmental objective that can be reasonably met by a corresponding exemption from a salary standardization scheme that is based on graduated salary levels. The legislature in fact enjoys a wide berth in continually classifying whenever it enacts a law,[189] provided that no persons similarly situated within a given class are treated differently. To contend otherwise is to be presumptuous about the legislative intent or lack of it.
Whether it would have been a better policy to make a more comprehensive classification “is not our province to decide.”[190] The absence of legislative facts supporting a classification chosen has no significance in the rational basis test.[191] In fact, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”[192] Requiring Congress to justify its efforts may even “lead it to refrain from acting at all.”[193] In addition, Murphy holds that the statutory classification “enjoys a strong presumption of constitutionality, and a reasonable doubt as to its constitutionality is sufficient to sustain it.”[194]
Respectfully, therefore, I again differ from the ponencia’s contention that the amendments of the charters of the seven GFIs from 1995 to 2004[195] have already “unconstitutionalized” the continued implementation of the BSP proviso. Be it remembered that the first six GFIs mentioned by Mr. Justice Puno -- namely the LBP, SSS, SBGFC, GSIS, DBP and HGC -- do not stand in the same class and category as the BSP.[196]
While the BSP, as mentioned earlier, is a regulatory agency performing governmental functions, the six aforementioned GFIs perform proprietary functions that chiefly compete with private banks and other non-bank financial institutions. Thus, the so-called concept of relative constitutionality again finds no application. Under the rational relationship test, there can be no unequal protection of the law between employees of the BSP and those of the GFIs. Further, the equal protection clause “guarantees equality, not identity of rights.”[197] A law remains valid even if it is limited “in the object to which it is directed.”[198]
“Defining the class of persons subject to a regulatory requirement x x x inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.”[199] In fact, as long as “the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern.”[200] “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”[201]
On the other hand, the Philippine Deposit Insurance Corporation (PDIC) is also a government regulatory agency almost on the same level of importance as the BSP. However, its charter was only amended very recently --to be more precise, on July 27, 2004.[202] Consequently, it would be most unfair to implicitly accuse Congress of inaction, discrimination and unequal treatment. Comity with and courtesy to a coequal branch dictate that our lawmakers be given sufficient time and leeway to address the alleged problem of differing pay scales. “Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.”[203] Besides, it is a cardinal rule that courts first ascertain whether construction of a statute is fairly possible by which any constitutional question therein may be avoided.[204]
To explain further, while the possible changes contemplated by Congress in HB 00123 are similar, if not identical, to those found in the amended charters of the seven other GFIs already mentioned, the governmental objectives as explicitly stated in the explanatory note remain -- to ascertain BSP’s effectiveness and to strengthen its supervisory capability in promoting a more stable banking system. This fact merely confirms that the present classification and distinction under the assailed provision still bear a rational relationship to the same legitimate governmental objectives and should, therefore, not be invalidated.
The validity of a law is to be determined not by its effects on a particular case or by an incidental result arising therefrom, but by the purpose and efficacy of the law in accomplishing that effect or result.[205] This point confirms my earlier position that the enactment of a law is not the same as its operation. Unlike Vera in which the Court invalidated the law on probation because of the unequal effect in the operation of such law,[206] the assailed provision in the present case suffers from no such invidious discrimination. It very well achieves its purpose, and it applies equally to all government employees within the BSP. Furthermore, the application of this provision is not made subject to any discretion, uneven appropriation of funds, or time limitation. Consequently, such a law neither denies equal protection nor permits of such denial.
The Strict Scrutiny Test
Under the second tier or the strict scrutiny test, the Court will require the government to show a compelling or overriding end to justify (1) the limitation on fundamental rights or (2) the implication of suspect classes.[207] Where a statutory classification impinges upon a fundamental right or burdens a suspect class, such classification is subjected to strict scrutiny.[208] It will be upheld only if it is shown to be “suitably tailored to serve a compelling state interest.”[209]
Therefore, all legal restrictions that curtail the civil rights of a suspect class, like a single racial or ethnic group, are immediately suspect. “That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.”[210] Pressing public necessity, for instance, may justify the existence of those restrictions, but antagonism toward such suspect classes never can.
To date, no American case -- federal or state -- has yet been decided involving equal pay schemes as applied either to government employees vis-à-vis private ones, or within the governmental ranks. Salary grade or class of position is not a fundamental right like marriage,[211] procreation,[212] voting,[213] speech[214] and interstate travel.[215] American courts have in fact even refused to declare government employment a fundamental right.[215]
As to suspect classes, non-exempt government employees (those with salary grades below 20) are not a group “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness, as to command extraordinary protection from the majoritarian political process.”[217] They are a group so much unlike race,[218] nationality,[219] alienage[220] or denominational preference[221] -- factors that are “seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy x x x.”[222]
Again, with due respect, the ponencia’s[223] reference to Yick Wo,[224] therefore, is unbefitting. Indeed that case held that “[t]hough the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the [C]onstitution.”[225] The facts in Yick Wo clearly point out that the questioned ordinances therein -- regulating the use of wooden buildings in the business of keeping and conducting laundries --operated in hostility to the race and nationality to which plaintiffs belonged, being aliens and subjects of the Emperor of China.[226] To a board of supervisors was given the arbitrary power to withhold permits to carry on a harmless and useful occupation on which the plaintiffs depended for livelihood.[227]
In contrast, no such arbitrariness is found in the case at bar. Neither is there any allegation of abuse of discretion in the implementation of a human resource development program. There is also no allegation of hostility shown toward employees receiving salaries below grade 20.
In fact, for purposes of equal protection analysis, financial need alone does not identify a suspect class.[228] And even if it were to consider government pay to be akin to wealth, it has already been held that “where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.”[229] After all, a law does not become invalid “because of simple inequality,”[230] financial or otherwise.
Since employment in the government is not a fundamental right and government employees below salary grade 20 are not a suspect class, the government is not required to present a compelling objective to justify a possible infringement under the strict scrutiny test. The assailed provision thus cannot be invalidated via the strict scrutiny gauntlet. “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”[231]
The Intensified Means Test
Under the third tier or the intensified means test, the Court should accept the legislative end, but should closely scrutinize its relationship to the classification made.[232] There exist classifications that are subjected to a higher or intermediate degree of scrutiny than the deferential or traditional rational basis test. These classifications, however, have not been deemed to involve suspect classes or fundamental rights; thus, they have not been subjected to the strict scrutiny test. In other words, such classifications must be “substantially related to a sufficiently important governmental interest.”[233] Examples of these so-called “quasi-suspect” classifications are those based on gender,[234] legitimacy under certain circumstances,[235] legal residency with regard to availment of free public education, civil service employment preference for armed forces veterans who are state residents upon entry to military service, and the right to practice for compensation the profession for which certain persons have been qualified and licensed.[236]
Non-exempt government employees may be a sensitive but not a suspect class, and their employment status may be important although not fundamental. Yet, the enactment of the assailed provision is a reasonable means by which the State seeks to advance its interest.[237] Since such provision sufficiently serves important governmental interests and is substantially related to the achievement thereof, then, again it stands.
“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’”[238] “The very idea of classification is that of inequality, so that x x x the fact of inequality in no manner determines the matter of constitutionality.”[239]
A statute, therefore, “is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.”[240] Congress does not have to “strike at all evils at the same time.”[241] Quoting Justice Holmes, a law “aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which [the law] might have been applied equally well, so far as the court can see. That is for the legislature to judge[,] unless the case is very clear.”[242] This Court is without power to disturb a legislative judgment, unless “there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.”[243] To find fault with a legislative policy “is not to establish the invalidity of the law based upon it.”[244]
Epilogue
After that rather lengthy discourse, permit me to summarize. I respectfully submit that the assailed provision is not unconstitutional either on its face or as applied.
First, the theory of relative constitutionality is inapplicable to and not in pari materia with the present facts. It pertains only to the circumstances that an assailed law specifically addressed upon its passage, and not to extraneous circumstances.
The American cases cited in the ponencia prove my point. The laws therein that have been declared invalid because of “altered circumstances” or “changed conditions” are of the emergency type passed in the exercise of the State’s police power, unlike the law involved in the present case. Moreover, our ruling in Rutter does not apply, because the assailed provision in the present case is not a remedial measure subject to a period within which a right of action or a remedy is suspended. Since the reason for the passage of the law still continues, the law itself must continue.
Second, this Court should respect Congress as a coequal branch of government. No urgency has been shown as to require the peremptory striking down of the assailed provision, and no injuries have been demonstrated to have been sustained as to require immediate action on the judiciary’s part.
The legislative classification of BSP employees into exempt and non-exempt, based on the salary grade of their positions, and their further distinction (albeit perhaps not by design) from the employees of various GFIs are nevertheless valid and reasonable in achieving the standards of professionalism and excellence within the BSP -- standards that are in accordance with sound principles of management and the other principles provided for under RA 6758. They are employees not subjected to the same levels of difficulty, responsibility, and qualification requirements. Besides, the BSP performs primarily governmental or regulatory functions, while the GFIs cited in the ponencia execute purely proprietary ones.
Congress is in fact presently deliberating upon possible amendments to the assailed provision. Since there is no question that it validly exercised its power and did not gravely abuse its discretion when it enacted the law, its will must be sustained. Under the doctrine of separation of powers with concomitant respect for coequal and coordinate branches of government, this Court has neither the authority nor the competence to create or amend laws.
Third, the assailed provision passes the three-tiered standard of review for equal protection. It is both a social and an economic measure rationally related to a governmental end that is not prohibited. Since salary grade, class of position, and government employment are not fundamental or constitutional rights, and non-exempt government employees or their financial need are not suspect classes, the government is not at all required to show a compelling state interest to justify the classification made. The provision is also substantially related to the achievement of sufficiently important governmental objectives. A law does not become invalid because of simple inequality, or because it did not strike at all evils at the same time.
At bottom, whichever constitutional test is used, the assailed provision is not unconstitutional. Moreover, a thorough scrutiny of the Petition reveals that the issue of equal protection has been raised only in regard to the unconstitutionality of the proviso at its inception,[245] and not by reason of the alleged “changed conditions” propounded by the ponencia. With greater reason then that the Petition should be denied.
In our jurisdiction, relative constitutionality is a rarely utilized theory having radical consequences; hence, I believe it should not be imposed by the Court unilaterally. Even in the US, it applies only when there is a change in factual circumstances covered by the law, not when there is an enactment of another law pertaining to subjects not directly covered by the assailed law. Whether factual conditions have so changed as to call for a partial or even a total abrogation of the law is a matter that rests primarily within the constitutional prerogative of Congress to determine.[246] To justify a judicial nullification, the constitutional breach of a legal provision must be very clear and unequivocal, not doubtful or argumentative.[247]
In short, this Court can go no further than to inquire whether Congress had the power to enact a law; it cannot delve into the wisdom of policies it adopts or into the adequacy under existing conditions of measures it enacts.[248] The equal protection clause is not a license for the courts “to judge the wisdom, fairness, or logic of legislative choices.”[249] Since relative constitutionality was not discussed by the parties in any of their pleadings, fundamental fairness and evenhandedness still dictate that Congress be heard on this concept before the Court imposes it in a definitive ruling.
Just a final observation at this juncture. It seems to me that when RA 7653 was enacted, the real focus of the second paragraph of Section 15(c) of Chapter 1 of Article II of the statute was to enable the officers and executives of the BSP to enjoy a wider scope of exemption from the Compensation Classification System than that stated in the last part of Section 9 of the Salary Standardization Law. As can be gleaned from the deliberations on the bill, the mention of BSP employees with salary grade 19 and below seems to have been purely incidental in the process of defining who were part of the executive and officer corps. It appears that the “classification” (if we can call it that) of the rank and filers with salary grade 19 and below, via the challenged proviso, came about not by design. And it was only after the later pieces of legislation were promulgated affecting the charters of the LBP, GSIS, SSS, DBP, etc. that the proviso came to be considered as “discriminatory.”
In these trying times, I cannot but sympathize with the BSP rank and filers on account of the situation they have found themselves in, and I do not mean to begrudge them the opportunity to receive a higher compensation package than what they are receiving now. However, they are operating on the simplistic assumption that, being rank and file employees employed in a GFI, they are automatically entitled to the same benefits, privileges, increases and the like enjoyed by any other rank and file employee of a GFI, seeing as they are all working for one and the same government anyway.
It could also have something to do with the fact that Central Bank employees were quite well paid in the past. They may have overlooked the fact that the different GFIs are regulated by their respective charters, and are mandated to perform different functions (governmental or proprietary). Consequently, their requirements and priorities are likewise different, and differ in importance in the overall scheme of things, thus necessitating some degree of differentiation and calibration in respect of resource allocation, budgets and appropriations, and the like.
The long and short of it is that there can be no such thing as an automatic entitlement to increases in compensation, benefits and so forth, whether we consider the BSP rank and filers similarly situated along with other rank and filers of GFIs, or as being in a class by themselves. This is because the BSP is, strictly speaking, not a GFI but rather, the regulatory agency of GFIs.
The foregoing becomes even more starkly clear when mention is again made of the fiscal/budget deficit hobbling the national government, which has, not surprisingly, triggered waves of belt tightening measures throughout every part of the bureaucracy. This particular scenario puts Congress somewhat at odds with itself. On the one hand, it is studying HB 00123 with the end in view of precisely addressing the principal concern of the petitioner. On the other hand, it is also looking into how the various exemptions from the Salary Standardization Law can be rationalized or done away with, in the hope of ultimately reducing the gargantuan deficit.
Thankfully, the Court is not the one having to grapple with such a conundrum. It behooves us to give Congress, in the exercise of its constitutional mandate and prerogative, as much elbow room and breathing space as it needs in order to tackle and perhaps vanquish the many headed monster.
And while we all watch from the sidelines, we can all console ourselves and one another that after all, whether we find ourselves classified-out as BSP rank and filers, or officers and executives, or employees and members of the judiciary, we are -- all of us -- in the same boat, for we have all chosen to be in “public service,” as the term is correctly understood. And what is public service if it does not entail a certain amount of personal sacrifice on the part of each one of us, all for the greater good of our society and country. We each make our respective sacrifices, sharing in the burden today, in the hope of a better tomorrow for our children and loved ones, and our society as a whole. It makes us strong. For this we can be thankful as well.
WHEREFORE, I vote to DISMISS the Petition. I maintain that the last proviso of the second paragraph of Section 15(c) of Chapter 1 of Article II of Republic Act No. 7653 is constitutional. Congress should be given adequate opportunity to enact the appropriate legislation that will address the issue raised by petitioner and clear the proviso of any possible or perceived infringement of the equal protection clause. At the very least, Congress and herein respondents should be given notice and opportunity to respond to the possible application of the theory of relative constitutionality before it is, if at all, imposed by this Court.
[1] See ponencia footnote nos. 24, 25, 26, 27 and 28.
[2] Medill v. State, 477 NW 2d 703, November 22, 1991.
[3] Id., p. 704.
[4] Ibid.
[5] Id., pp. 706-707.
[6] Id., pp. 705-708.
[7] Id., p. 708.
[8] Id., p. 709, per Yetka, J.
[9] These rulings were on fraternal benefit and homestead exemptions. Id., p. 708.
[10] Ibid.
[11] Ibid.
[12] In re Cook, 138 BR 943, April 15, 1992.
I.
The Case
On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old Central Bank of the Philippines, and created a new BSP.
On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank (now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary of the Office of the President, to restrain respondents from further implementing the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority -In the exercise of its authority, the Monetary Board shall:The thrust of petitioner’s challenge is that the above proviso makes an unconstitutional cut between two classes of employees in the BSP, viz: (1) the BSP officers or those exempted from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2) the rank-and-file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of the SSL (non-exempt class). It is contended that this classification is “a classic case of class legislation,” allegedly not based on substantial distinctions which make real differences, but solely on the SG of the BSP personnel’s position. Petitioner also claims that it is not germane to the purposes of Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish professionalism and excellence at all levels in the BSP.[1] Petitioner offers the following sub-set of arguments:(c) establish a human resource management system which shall govern the selection, hiring, appointment, transfer, promotion, or dismissal of all personnel. Such system shall aim to establish professionalism and excellence at all levels of the Bangko Sentral in accordance with sound principles of management.
xxx xxx xxx
A compensation structure, based on job evaluation studies and wage surveys and subject to the Board’s approval, shall be instituted as an integral component of the Bangko Sentral’s human resource development program: Provided, That the Monetary Board shall make its own system conform as closely as possible with the principles provided for under Republic Act No. 6758 [Salary Standardization Act]. Provided, however, That compensation and wage structure of employees whose positions fall under salary grade 19 and below shall be in accordance with the rates prescribed under Republic Act No. 6758. [emphasis supplied]
- the legislative history of R.A. No. 7653 shows that the questioned proviso
does not appear in the original and amended versions of House Bill No.
7037, nor in the original version of Senate Bill No. 1235; [2]
-
subjecting the compensation of the BSP rank-and-file employees to the
rate prescribed by the SSL actually defeats the purpose of the law[3] of establishing professionalism and excellence at all levels in the BSP; [4] (emphasis supplied)
- the assailed proviso
was the product of amendments introduced during the deliberation of
Senate Bill No. 1235, without showing its relevance to the objectives of
the law, and even admitted by one senator as discriminatory against
low-salaried employees of the BSP;[5]
-
GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of
the SSL; thus within the class of rank-and-file personnel of government
financial institutions (GFIs), the BSP rank-and-file are also
discriminated upon;[6] and
- the assailed proviso has caused the demoralization among the BSP rank-and-file and resulted in the gross disparity between their compensation and that of the BSP officers’.[7]
Respondent BSP, in its comment,[10] contends that the provision does not violate the equal protection clause and can stand the constitutional test, provided it is construed in harmony with other provisions of the same law, such as “fiscal and administrative autonomy of BSP,” and the mandate of the Monetary Board to “establish professionalism and excellence at all levels in accordance with sound principles of management.”
The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity of the provision. Quite simplistically, he argues that the classification is based on actual and real differentiation, even as it adheres to the enunciated policy of R.A. No. 7653 to establish professionalism and excellence within the BSP subject to prevailing laws and policies of the national government.[11]
II.
Issue
III.
Ruling
- UNDER THE PRESENT STANDARDS OF EQUAL PROTECTION, SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.
Jurisprudential standards for equal protection challenges indubitably show that the classification created by the questioned proviso, on its face and in its operation, bears no constitutional infirmities.
It is settled in constitutional law that the "equal protection" clause does not prevent the Legislature from establishing classes of individuals or objects upon which different rules shall operate - so long as the classification is not unreasonable. As held in Victoriano v. Elizalde Rope Workers’ Union,[13] and reiterated in a long line of cases:[14]The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate.
Congress is allowed a wide leeway in providing for a valid classification.[15] The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class.[16] If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another.[17] The classification must also be germane to the purpose of the law and must apply to all those belonging to the same class.[18]
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear. (citations omitted)
In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 and above) from the SSL was intended to address the BSP’s lack of competitiveness in terms of attracting competent officers and executives. It was not intended to discriminate against the rank-and-file. If the end-result did in fact lead to a disparity of treatment between the officers and the rank-and-file in terms of salaries and benefits, the discrimination or distinction has a rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense. [19]
That the provision was a product of amendments introduced during the deliberation of the Senate Bill does not detract from its validity. As early as 1947 and reiterated in subsequent cases,[20] this Court has subscribed to the conclusiveness of an enrolled bill to refuse invalidating a provision of law, on the ground that the bill from which it originated contained no such provision and was merely inserted by the bicameral conference committee of both Houses.
Moreover, it is a fundamental and familiar teaching that all reasonable doubts should be resolved in favor of the constitutionality of a statute.[21] An act of the legislature, approved by the executive, is presumed to be within constitutional limitations.[22] To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach.[23]
- THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS - EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES OF GFIs FROM THE SSL - RENDERS THE CONTINUED APPLICATION OF THE CHALLENGED PROVISION A VIOLATION OF THE EQUAL PROTECTION CLAUSE.
- The concept of relative constitutionality.
The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of its provisions with applicable provisions of the Constitution, since the statute may be constitutionally valid as applied to one set of facts and invalid in its application to another.[24]
A statute valid at one time may become void at another time because of altered circumstances.[25] Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions.[26]
Demonstrative of this doctrine is Vernon Park Realty v. City of Mount Vernon,[27] where the Court of Appeals of New York declared as unreasonable and arbitrary a zoning ordinance which placed the plaintiff's property in a residential district, although it was located in the center of a business area. Later amendments to the ordinance then prohibited the use of the property except for parking and storage of automobiles, and service station within a parking area. The Court found the ordinance to constitute an invasion of property rights which was contrary to constitutional due process. It ruled:While the common council has the unquestioned right to enact zoning laws respecting the use of property in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare, such power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted. By the same token, an ordinance valid when adopted will nevertheless be stricken down as invalid when, at a later time, its operation under changed conditions proves confiscatory such, for instance, as when the greater part of its value is destroyed, for which the courts will afford relief in an appropriate case.[28] (citations omitted, emphasis supplied)
In the Philippine setting, this Court declared the continued enforcement of a valid law as unconstitutional as a consequence of significant changes in circumstances. Rutter v. Esteban[29] upheld the constitutionality of the moratorium law - its enactment and operation being a valid exercise by the State of its police power[30] - but also ruled that the continued enforcement of the otherwise valid law would be unreasonable and oppressive. It noted the subsequent changes in the country’s business, industry and agriculture. Thus, the law was set aside because its continued operation would be grossly discriminatory and lead to the oppression of the creditors. The landmark ruling states:[31]The question now to be determined is, is the period of eight (8) years which Republic Act No. 342 grants to debtors of a monetary obligation contracted before the last global war and who is a war sufferer with a claim duly approved by the Philippine War Damage Commission reasonable under the present circumstances?
It should be noted that Republic Act No. 342 only extends relief to debtors of prewar obligations who suffered from the ravages of the last war and who filed a claim for their losses with the Philippine War Damage Commission. It is therein provided that said obligation shall not be due and demandable for a period of eight (8) years from and after settlement of the claim filed by the debtor with said Commission. The purpose of the law is to afford to prewar debtors an opportunity to rehabilitate themselves by giving them a reasonable time within which to pay their prewar debts so as to prevent them from being victimized by their creditors. While it is admitted in said law that since liberation conditions have gradually returned to normal, this is not so with regard to those who have suffered the ravages of war and so it was therein declared as a policy that as to them the debt moratorium should be continued in force (Section 1).
But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could effect a liquidation of their investment dating as far back as 1941. his period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under the law, the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States.
xxx xxx xxx
In the face of the foregoing observations, and consistent with what we believe to be as the only course dictated by justice, fairness and righteousness, we feel that the only way open to us under the present circumstances is to declare that the continued operation and enforcement of Republic Act No. 342 at the present time is unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared null and void and without effect. (emphasis supplied, citations omitted)
- Applicability of the equal protection clause.
In the realm of equal protection, the U.S. case of Atlantic Coast Line R. Co. v. Ivey[32] is illuminating. The Supreme Court of Florida ruled against the continued application of statutes authorizing the recovery of double damages plus attorney's fees against railroad companies, for animals killed on unfenced railroad right of way without proof of negligence. Competitive motor carriers, though creating greater hazards, were not subjected to similar liability because they were not yet in existence when the statutes were enacted. The Court ruled that the statutes became invalid as denying “equal protection of the law,” in view of changed conditions since their enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner,[33] the Court of Appeals of Kentucky declared unconstitutional a provision of a statute which imposed a duty upon a railroad company of proving that it was free from negligence in the killing or injury of cattle by its engine or cars. This, notwithstanding that the constitutionality of the statute, enacted in 1893, had been previously sustained. Ruled the Court:The constitutionality of such legislation was sustained because it applied to all similar corporations and had for its object the safety of persons on a train and the protection of property…. Of course, there were no automobiles in those days. The subsequent inauguration and development of transportation by motor vehicles on the public highways by common carriers of freight and passengers created even greater risks to the safety of occupants of the vehicles and of danger of injury and death of domestic animals. Yet, under the law the operators of that mode of competitive transportation are not subject to the same extraordinary legal responsibility for killing such animals on the public roads as are railroad companies for killing them on their private rights of way.
Echoes of these rulings resonate in our case law, viz:
The Supreme Court, speaking through Justice Brandeis in Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79 L.Ed. 949, stated, “A statute valid when enacted may become invalid by change in the conditions to which it is applied. The police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably.” A number of prior opinions of that court are cited in support of the statement. The State of Florida for many years had a statute, F.S.A. § 356.01 et seq. imposing extraordinary and special duties upon railroad companies, among which was that a railroad company was liable for double damages and an attorney's fee for killing livestock by a train without the owner having to prove any act of negligence on the part of the carrier in the operation of its train. In Atlantic Coast Line Railroad Co. v. Ivey, it was held that the changed conditions brought about by motor vehicle transportation rendered the statute unconstitutional since if a common carrier by motor vehicle had killed the same animal, the owner would have been required to prove negligence in the operation of its equipment. Said the court, “This certainly is not equal protection of the law.”[34] (emphasis supplied)[C]ourts are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect. A statute nondiscriminatory on its face may be grossly discriminatory in its operation. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.[35] (emphasis supplied, citations omitted)
[W]e see no difference between a law which denies equal protection and a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition….. In other words, statutes may be adjudged unconstitutional because of their effect in operation…. If a law has the effect of denying the equal protection of the law it is unconstitutional. ….[36] (emphasis supplied, citations omitted
- Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 + 8763 + 9302 = consequential unconstitutionality of challenged proviso.
Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz:
- R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);
- R.A. No. 8282 (1997) for Social Security System (SSS);
- R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation, (SBGFC);
- R.A. No. 8291 (1997) for Government Service Insurance System (GSIS);
- R.A. No. 8523 (1998) for Development Bank of the Philippines (DBP);
- R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);[38] and
- R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).
Thus, eleven years after the amendment of the BSP charter, the rank-and-file of seven other GFIs were granted the exemption that was specifically denied to the rank-and-file of the BSP. And as if to add insult to petitioner’s injury, even the Securities and Exchange Commission (SEC) was granted the same blanket exemption from the SSL in 2000![39]
- LBP (R.A. No. 7907)
Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read as follows:Section 90. Personnel. -
xxx xxx xxx
All positions in the Bank shall be governed by a compensation, position classification system and qualification standards approved by the Bank’s Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability. The Bank shall therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758. (emphasis supplied)
xxx xxx xxx
- SSS (R.A. No. 8282)
Section 1. [Amending R.A. No. 1161, Section 3(c)]:xxx xxx xxx
(c)The Commission, upon the recommendation of the SSS President, shall appoint an actuary and such other personnel as may [be] deemed necessary; fix their reasonable compensation, allowances and other benefits; prescribe their duties and establish such methods and procedures as may be necessary to insure the efficient, honest and economical administration of the provisions and purposes of this Act: Provided, however, That the personnel of the SSS below the rank of Vice President shall be appointed by the SSS President: Provided, further, That the personnel appointed by the SSS President, except those below the rank of assistant manager, shall be subject to the confirmation by the Commission; Provided further, That the personnel of the SSS shall be selected only from civil service eligibles and be subject to civil service rules and regulations: Provided, finally, That the SSS shall be exempt from the provisions of Republic Act No. 6758 and Republic Act No. 7430. (emphasis supplied)
- SBGFC (R.A. No. 8289)
Section 8. [Amending R.A. No. 6977, Section 11]:xxx xxx xxx
The Small Business Guarantee and Finance Corporation shall:
xxx xxx xxx
(e) notwithstanding the provisions of Republic Act No. 6758, and Compensation Circular No. 10, series of 1989 issued by the Department of Budget and Management, the Board of Directors of SBGFC shall have the authority to extend to the employees and personnel thereof the allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other government financial institutions. (emphases supplied)
- GSIS (R.A. No. 8291)
Section 1. [Amending Section 43(d)].
xxx xxx xxx
Sec. 43. Powers and Functions of the Board of Trustees. - The Board of Trustees shall have the following powers and functions:xxx xxx xxx
(d) upon the recommendation of the President and General Manager, to approve the GSIS’ organizational and administrative structures and staffing pattern, and to establish, fix, review, revise and adjust the appropriate compensation package for the officers and employees of the GSIS with reasonable allowances, incentives, bonuses, privileges and other benefits as may be necessary or proper for the effective management, operation and administration of the GSIS, which shall be exempt from Republic Act No. 6758, otherwise known as the Salary Standardization Law and Republic Act No. 7430, otherwise known as the Attrition Law. (emphasis supplied)
xxx xxx xxx
- DBP (R.A. No. 8523)
Section 6. [Amending E.O. No. 81, Section 13]:Section 13. Other Officers and Employees. - The Board of Directors shall provide for an organization and staff of officers and employees of the Bank and upon recommendation of the President of the Bank, fix their remunerations and other emoluments. All positions in the Bank shall be governed by the compensation, position classification system and qualification standards approved by the Board of Directors based on a comprehensive job analysis of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board of Directors once every two (2) years, without prejudice to yearly merit or increases based on the Bank’s productivity and profitability. The Bank shall, therefore, be exempt from existing laws, rules, and regulations on compensation, position classification and qualification standards. The Bank shall however, endeavor to make its system conform as closely as possible with the principles under Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended). (emphasis supplied)
- HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board of Directors. - The Board shall have the following powers, functions and duties:xxx xxx xxx
(e) To create offices or positions necessary for the efficient management, operation and administration of the Corporation: Provided, That all positions in the Home Guaranty Corporation (HGC) shall be governed by a compensation and position classification system and qualifications standards approved by the Corporation’s Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities: Provided, further, That the compensation plan shall be comparable with the prevailing compensation plans in the private sector and which shall be exempt from Republic Act No. 6758, otherwise known as the Salary Standardization Law, and from other laws, rules and regulations on salaries and compensations; and to establish a Provident Fund and determine the Corporation’s and the employee’s contributions to the Fund; (emphasis supplied)
xxx xxx xxx
- PDIC (R.A. No. 9302)
Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby further amended to read:3.
xxx xxx xxxxxx xxx xxx
A compensation structure, based on job evaluation studies and wage surveys and subject to the Board’s approval, shall be instituted as an integral component of the Corporation’s human resource development program: Provided, That all positions in the Corporation shall be governed by a compensation, position classification system and qualification standards approved by the Board based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans of other government financial institutions and shall be subject to review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability. The Corporation shall therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758, as amended. (emphases supplied)
The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its classification between the rank-and-file and the officers of the BSP, found reasonable because there were substantial distinctions that made real differences between the two classes.
The above-mentioned subsequent enactments, however, constitute significant changes in circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the classification - albeit made indirectly as a consequence of the passage of eight other laws - between the rank-and-file of the BSP and the seven other GFIs. The classification must not only be reasonable, but must also apply equally to all members of the class. The proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust distinctions between persons who are without differences.[40]
Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is Congress’ power to classify so unbridled as to sanction unequal and discriminatory treatment, simply because the inequity manifested itself, not instantly through a single overt act, but gradually and progressively, through seven separate acts of Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can only be invoked against a classification made directly and deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to determining the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack thereof, among several similar enactments made over a period of time?
In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to the seven other GFIs) rests “on a policy determination by the legislature.” All legislative enactments necessarily rest on a policy determination - even those that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution.
In fine, the “policy determination” argument may support the inequality of treatment between the rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment between BSP rank-and-file and other GFIs’ who are similarly situated. It fails to appreciate that what is at issue in the second level of scrutiny is not the declared policy of each law per se, but the oppressive results of Congress’ inconsistent and unequal policy towards the BSP rank-and-file and those of the seven other GFIs. At bottom, the second challenge to the constitutionality of Section 15(c), Article II of Republic Act No. 7653 is premised precisely on the irrational discriminatory policy adopted by Congress in its treatment of persons similarly situated. In the field of equal protection, the guarantee that "no person shall be … denied the equal protection of the laws” includes the prohibition against enacting laws that allow invidious discrimination, directly or indirectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it is unconstitutional.[41]
It is against this standard that the disparate treatment of the BSP rank-and-file from the other GFIs cannot stand judicial scrutiny. For as regards the exemption from the coverage of the SSL, there exist no substantial distinctions so as to differentiate, the BSP rank-and-file from the other rank-and-file of the seven GFIs. On the contrary, our legal history shows that GFIs have long been recognized as comprising one distinct class, separate from other governmental entities.
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to provide equal pay for substantially equal work, and (2) to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. P.D. No. 985 was passed to address disparities in pay among similar or comparable positions which had given rise to dissension among government employees. But even then, GFIs and government-owned and/or controlled corporations (GOCCs) were already identified as a distinct class among government employees. Thus, Section 2 also provided, “[t]hat notwithstanding a standardized salary system established for all employees, additional financial incentives may be established by government corporation and financial institutions for their employees to be supported fully from their corporate funds and for such technical positions as may be approved by the President in critical government agencies.”[42]
The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b) provides that one of the principles governing the Compensation and Position Classification System of the Government is that: “[b]asic compensation for all personnel in the government and government-owned or controlled corporations and financial institutions shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages.”
Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and Position Classification System of the SSL,[43] but rates of pay under the SSL were determined on the basis of, among others, prevailing rates in the private sector for comparable work. Notably, the Compensation and Position Classification System was to be governed by the following principles: (a) just and equitable wages, with the ratio of compensation between pay distinctions maintained at equitable levels;[44] and (b) basic compensation generally comparable with the private sector, in accordance with prevailing laws on minimum wages.[45] Also, the Department of Budget and Management was directed to use, as guide for preparing the Index of Occupational Services, the Benchmark Position Schedule, and the following factors:[46]
The Benchmark Position Schedule enumerates the position titles that fall within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all aspects pertaining to compensation and position classification, in consonance with Section 5, Article IX-B of the 1997 Constitution.[47]
Then came the enactment of the amended charter of the BSP, implicitly exempting the Monetary Board from the SSL by giving it express authority to determine and institute its own compensation and wage structure. However, employees whose positions fall under SG 19 and below were specifically limited to the rates prescribed under the SSL.
Subsequent amendments to the charters of other GFIs followed. Significantly, each government financial institution (GFI) was not only expressly authorized to determine and institute its own compensation and wage structure, but also explicitly exempted - without distinction as to salary grade or position - all employees of the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant or withdrawal of exemption from the SSL, based on the perceived need “to fulfill the mandate of the institution concerned considering, among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC or GFI is in direct competition with their [sic] counterparts in the private sector, not only in terms of the provisions of goods or services, but also in terms of hiring and retaining competent personnel; and (3) the GOCC or GFI are or were [sic] experiencing difficulties filling up plantilla positions with competent personnel and/or retaining these personnel. The need for the scope of exemption necessarily varies with the particular circumstances of each institution, and the corresponding variance in the benefits received by the employees is merely incidental.”
The fragility of this argument is manifest. First, the BSP is the central monetary authority,[48] and the banker of the government and all its political subdivisions.[49] It has the sole power and authority to issue currency;[50] provide policy directions in the areas of money, banking, and credit; and supervise banks and regulate finance companies and non-bank financial institutions performing quasi-banking functions, including the exempted GFIs.[51] Hence, the argument that the rank-and-file employees of the seven GFIs were exempted because of the importance of their institution’s mandate cannot stand any more than an empty sack can stand.
Second, it is certainly misleading to say that “the need for the scope of exemption necessarily varies with the particular circumstances of each institution.” Nowhere in the deliberations is there a cogent basis for the exclusion of the BSP rank-and-file from the exemption which was granted to the rank-and-file of the other GFIs and the SEC. As point in fact, the BSP and the seven GFIs are similarly situated in so far as Congress deemed it necessary for these institutions to be exempted from the SSL. True, the SSL-exemption of the BSP and the seven GFIs was granted in the amended charters of each GFI, enacted separately and over a period of time. But it bears emphasis that, while each GFI has a mandate different and distinct from that of another, the deliberations show that the raison d’être of the SSL-exemption was inextricably linked to and for the most part based on factors common to the eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified and effective personnel to carry out the GFI’s mandate; and (3) the recognition that the compensation package of these GFIs is not competitive, and fall substantially below industry standards. Considering further that (a) the BSP was the first GFI granted SSL exemption; and (b) the subsequent exemptions of other GFIs did not distinguish between the officers and the rank-and-file; it is patent that the classification made between the BSP rank-and-file and those of the other seven GFIs was inadvertent, and NOT intended, i.e., it was not based on any substantial distinction vis-à-vis the particular circumstances of each GFI. Moreover, the exemption granted to two GFIs makes express reference to allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other GFIs,[52] underscoring that GFIs are a particular class within the realm of government entities.
It is precisely this unpremeditated discrepancy in treatment of the rank-and-file of the BSP - made manifest and glaring with each and every consequential grant of blanket exemption from the SSL to the other GFIs - that cannot be rationalized or justified. Even more so, when the SEC - which is not a GFI - was given leave to have a compensation plan that “shall be comparable with the prevailing compensation plan in the [BSP] and other [GFIs],”[53] then granted a blanket exemption from the SSL, and its rank-and-file endowed a more preferred treatment than the rank-and-file of the BSP.
The violation to the equal protection clause becomes even more pronounced when we are faced with this undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the eight GFIs from the coverage of the SSL, the exclusion of the BSP rank-and-file employees would have been devoid of any substantial or material basis. It bears no moment, therefore, that the unlawful discrimination was not a direct result arising from one law. “Nemo potest facere per alium quod non potest facere per directum.” No one is allowed to do indirectly what he is prohibited to do directly.
It has also been proffered that “similarities alone are not sufficient to support the conclusion that rank-and-file employees of the BSP may be lumped together with similar employees of the other GOCCs for purposes of compensation, position classification and qualification standards. The fact that certain persons have some attributes in common does not automatically make them members of the same class with respect to a legislative classification.” Cited is the ruling in Johnson v. Robinson:[54] “this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute’s different treatment of the two groups.”
The reference to Johnson is inapropos. In Johnson, the US Court sustained the validity of the classification as there were quantitative and qualitative distinctions, expressly recognized by Congress, which formed a rational basis for the classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life. The Court listed the peculiar characteristics as follows:
First, the disruption caused by military service is quantitatively greater than that caused by alternative civilian service. A conscientious objector performing alternative service is obligated to work for two years. Service in the Armed Forces, on the other hand, involves a six-year commitment…In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The distinction made by the law is not only superficial,[56] but also arbitrary. It is not based on substantial distinctions that make real differences between the BSP rank-and-file and the seven other GFIs.xxx xxx xxx
Second, the disruptions suffered by military veterans and alternative service performers are qualitatively different. Military veterans suffer a far greater loss of personal freedom during their service careers. Uprooted from civilian life, the military veteran becomes part of the military establishment, subject to its discipline and potentially hazardous duty. Congress was acutely aware of the peculiar disabilities caused by military service, in consequence of which military servicemen have a special need for readjustment benefits…[55] (citations omitted)
Moreover, the issue in this case is not - as the dissenting opinion of Mme. Justice Carpio-Morales would put it - whether “being an employee of a GOCC or GFI is reasonable and sufficient basis for exemption” from R.A. No. 6758. It is Congress itself that distinguished the GFIs from other government agencies, not once but eight times, through the enactment of R.A. Nos. 7653, 7907, 8282, 8289, 8291, 8523, 8763, and 9302. These laws may have created a “preferred sub-class within government employees,” but the present challenge is not directed at the wisdom of these laws. Rather, it is a legal conundrum involving the exercise of legislative power, the validity of which must be measured not only by looking at the specific exercise in and by itself (R.A. No. 7653), but also as to the legal effects brought about by seven separate exercises - albeit indirectly and without intent.
Thus, even if petitioner had not alleged “a comparable change in the factual milieu as regards the compensation, position classification and qualification standards of the employees of the BSP (whether of the executive level or of the rank-and-file) since the enactment of the new Central Bank Act” is of no moment. In GSIS v. Montesclaros,[57] this Court resolved the issue of constitutionality notwithstanding that claimant had manifested that she was no longer interested in pursuing the case, and even when the constitutionality of the said provision was not squarely raised as an issue, because the issue involved not only the claimant but also others similarly situated and whose claims GSIS would also deny based on the challenged proviso. The Court held that social justice and public interest demanded the resolution of the constitutionality of the proviso. And so it is with the challenged proviso in the case at bar.
It bears stressing that the exemption from the SSL is a “privilege” fully within the legislative prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees breached the latter’s right to equal protection. In other words, while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review.[58] So when the distinction made is superficial, and not based on substantial distinctions that make real differences between those included and excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct.[59] As held in the United Kingdom case of Hooper v. Secretary of State for Work and Pensions,[60] once the State has chosen to confer benefits, “discrimination” contrary to law may occur where favorable treatment already afforded to one group is refused to another, even though the State is under no obligation to provide that favorable treatment. [61]
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause does not demand absolute equality but it requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion; whatever restrictions cast on some in the group is equally binding on the rest.[62]
In light of the lack of real and substantial distinctions that would justify the unequal treatment between the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the seven subsequent charters has rendered the continued application of the challenged proviso anathema to the equal protection of the law, and the same should be declared as an outlaw.
IV.
Equal Protection Under
International Lens
- Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone beyond the static “rational basis” test. Professor Gunther highlights the development in equal protection jurisprudential analysis, to wit: [65]Traditionally, equal protection supported only minimal judicial intervention in most contexts. Ordinarily, the command of equal protection was only that government must not impose differences in treatment “except upon some reasonable differentiation fairly related to the object of regulation.” The old variety of equal protection scrutiny focused solely on the means used by the legislature: it insisted merely that the classification in the statute reasonably relates to the legislative purpose. Unlike substantive due process, equal protection scrutiny was not typically concerned with identifying “fundamental values” and restraining legislative ends. And usually the rational classification requirement was readily satisfied: the courts did not demand a tight fit between classification and purpose; perfect congruence between means and ends was not required.
xxx xxx xxx
[From marginal intervention to major cutting edge: The Warren Court’s “new equal protection” and the two-tier approach.]
From its traditional modest role, equal protection burgeoned into a major intervention tool during the Warren era, especially in the 1960s. The Warren Court did not abandon the deferential ingredients of the old equal protection: in most areas of economic and social legislation, the demands imposed by equal protection remained as minimal as ever…But the Court launched an equal protection revolution by finding large new areas for strict rather than deferential scrutiny. A sharply differentiated two-tier approach evolved by the late 1960s: in addition to the deferential “old” equal protection, a “new” equal protection, connoting strict scrutiny, arose…. The intensive review associated with the new equal protection imposed two demands - a demand not only as to means but also one as to ends. Legislation qualifying for strict scrutiny required a far closer fit between classification and statutory purpose than the rough and ready flexibility traditionally tolerated by the old equal protection: means had to be shown “necessary” to achieve statutory ends, not merely “reasonably related” ones. Moreover, equal protection became a source of ends scrutiny as well: legislation in the areas of the new equal protection had to be justified by “compelling” state interests, not merely the wide spectrum of “legitimate” state ends.
The Warren Court identified the areas appropriate for strict scrutiny by searching for two characteristics: the presence of a “suspect” classification; or an impact on “fundamental” rights or interests. In the category of “suspect classifications,” the Warren Court’s major contribution was to intensify the strict scrutiny in the traditionally interventionist area of racial classifications. But other cases also suggested that there might be more other suspect categories as well: illegitimacy and wealth for example. But it was the ‘fundamental interests” ingredient of the new equal protection that proved particularly dynamic, open-ended, and amorphous….. [Other fundamental interests included voting, criminal appeals, and the right of interstate travel ….]
xxx xxx xxx
The Burger Court was reluctant to expand the scope of the new equal protection, although its best established ingredient retains vitality. There was also mounting discontent with the rigid two-tier formulations of the Warren Court’s equal protection doctrine. It was prepared to use the clause as an interventionist tool without resorting to the strict language of the new equal protection…. [Among the fundamental interests identified during this time were voting and access to the ballot, while “suspect” classifications included sex, alienage and illegitimacy.]
xxx xxx xxx
Even while the two-tier scheme has often been adhered to in form, there has also been an increasingly noticeable resistance to the sharp difference between deferential “old” and interventionist “new” equal protection. A number of justices sought formulations that would blur the sharp distinctions of the two-tiered approach or that would narrow the gap between strict scrutiny and deferential review. The most elaborate attack came from Justice Marshall, whose frequently stated position was developed most elaborately in his dissent in the Rodriguez case: [66]The Court apparently seeks to establish [that] equal protection cases fall into one of two neat categories which dictate the appropriate standard of review - strict scrutiny or mere rationality. But this (sic) Court’s [decisions] defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the equal protection clause. This spectrum clearly comprehends variations in the degree of care with which Court will scrutinize particular classification, depending, I believe, on the constitutional and societal importance of the interests adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.
Justice Marshall’s “sliding scale” approach describes many of the modern decisions, although it is a formulation that the majority refused to embrace. But the Burger Court’s results indicate at least two significant changes in equal protection law: First, invocation of the “old” equal protection formula no longer signals, as it did with the Warren Court, an extreme deference to legislative classifications and a virtually automatic validation of challenged statutes. Instead, several cases, even while voicing the minimal “rationality” “hands-off” standards of the old equal protection, proceed to find the statute unconstitutional. Second, in some areas the modern Court has put forth standards for equal protection review that, while clearly more intensive than the deference of the “old” equal protection, are less demanding than the strictness of the “new” equal protection. Sex discrimination is the best established example of an “intermediate” level of review. Thus, in one case, the Court said that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” That standard is “intermediate” with respect to both ends and means: where ends must be “compelling” to survive strict scrutiny and merely “legitimate” under the “old” mode, “important” objectives are required here; and where means must be “necessary” under the “new” equal protection, and merely “rationally related” under the “old” equal protection, they must be “substantially related” to survive the “intermediate” level of review. (emphasis supplied, citations omitted)
- Equal Protection in Europe
The United Kingdom and other members of the European Community have also gone forward in discriminatory legislation and jurisprudence. Within the United Kingdom domestic law, the most extensive list of protected grounds can be found in Article 14 of the European Convention on Human Rights (ECHR). It prohibits discrimination on grounds such as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” This list is illustrative and not exhaustive. Discrimination on the basis of race, sex and religion is regarded as grounds that require strict scrutiny. A further indication that certain forms of discrimination are regarded as particularly suspect under the Covenant can be gleaned from Article 4, which, while allowing states to derogate from certain Covenant articles in times of national emergency, prohibits derogation by measures that discriminate solely on the grounds of “race, colour, language, religion or social origin.”[67]
Moreover, the European Court of Human Rights has developed a test of justification which varies with the ground of discrimination. In the Belgian Linguistics case[68] the European Court set the standard of justification at a low level: discrimination would contravene the Convention only if it had no legitimate aim, or there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised.[69] But over the years, the European Court has developed a hierarchy of grounds covered by Article 14 of the ECHR, a much higher level of justification being required in respect of those regarded as “suspect” (sex, race, nationality, illegitimacy, or sexual orientation) than of others. Thus, in Abdulaziz, [70] the European Court declared that:. . . [t]he advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.
And in Gaygusuz v. Austria,[71] the European Court held that “very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.”[72] The European Court will then permit States a very much narrower margin of appreciation in relation to discrimination on grounds of sex, race, etc., in the application of the Convention rights than it will in relation to distinctions drawn by states between, for example, large and small land-owners. [73]
- Equality under
International Law
Most, if not all, international human rights instruments include some prohibition on discrimination and/or provisions about equality.[75] The general international provisions pertinent to discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR);[76] the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial Discrimination (CERD);[77] the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC).
In the broader international context, equality is also enshrined in regional instruments such as the American Convention on Human Rights;[78] the African Charter on Human and People's Rights;[79] the European Convention on Human Rights;[80] the European Social Charter of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance to European states). Even the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.[81]
The equality provisions in these instruments do not merely function as traditional "first generation" rights, commonly viewed as concerned only with constraining rather than requiring State action. Article 26 of the ICCPR requires “guarantee[s]” of “equal and effective protection against discrimination” while Articles 1 and 14 of the American and European Conventions oblige States Parties “to ensure ... the full and free exercise of [the rights guaranteed] ... without any discrimination” and to “secure without discrimination” the enjoyment of the rights guaranteed.[82] These provisions impose a measure of positive obligation on States Parties to take steps to eradicate discrimination.
In the employment field, basic detailed minimum standards ensuring equality and prevention of discrimination, are laid down in the ICESCR[83] and in a very large number of Conventions administered by the International Labour Organisation, a United Nations body.[84] Additionally, many of the other international and regional human rights instruments have specific provisions relating to employment.[85]
The United Nations Human Rights Committee has also gone beyond the earlier tendency to view the prohibition against discrimination (Article 26) as confined to the ICCPR rights.[86] In Broeks[87] and Zwaan-de Vries,[88] the issue before the Committee was whether discriminatory provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope of Article 26. The Dutch government submitted that discrimination in social security benefit provision was not within the scope of Article 26, as the right was contained in the ICESCR and not the ICCPR. They accepted that Article 26 could go beyond the rights contained in the Covenant to other civil and political rights, such as discrimination in the field of taxation, but contended that Article 26 did not extend to the social, economic, and cultural rights contained in ICESCR. The Committee rejected this argument. In its view, Article 26 applied to rights beyond the Covenant including the rights in other international treaties such as the right to social security found in ICESCR:
Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any state to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply with Article 26 of the Covenant.[89]Breaches of the right to equal protection occur directly or indirectly. A classification may be struck down if it has the purpose or effect of violating the right to equal protection. International law recognizes that discrimination may occur indirectly, as the Human Rights Committee[90] took into account the definitions of discrimination adopted by CERD and CEDAW in declaring that:
. . . “discrimination” as used in the [ICCPR] should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.[91] (emphasis supplied)Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of other jurisdictions and in international law. There should be no hesitation in using the equal protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in our society. Indeed, the social justice imperatives in the Constitution, coupled with the special status and protection afforded to labor, compel this approach.[92]
Apropos the special protection afforded to labor under our Constitution and international law, we held in International School Alliance of Educators v. Quisumbing:[93]
That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution.[94] The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice.
International law, which springs from general principles of law, likewise proscribes discrimination. General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible.
The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace - the factory, the office or the field - but include as well the manner by which employers treat their employees.
The Constitution also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof, provides:The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and [favorable] conditions of work, which ensure, in particular:a. Remuneration which provides all workers, as a minimum, with:i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;xxx xxx xxx
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. (citations omitted)
Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions.[95] We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice.[96] Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others.[97]
In the 2003 case of Francisco v. House of Representatives, this Court has stated that: “[A]merican jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned....[I]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs.”[98] Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged.[99]
Further, the quest for a better and more “equal” world calls for the use of equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims “equality” as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in “all phases of national development,” further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality.… [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.[100]Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor.[101] Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law.[102] And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality.[103] Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.[104]
V.
A Final Word
Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the “rational basis” test, and the legislative discretion would be given deferential treatment.[105]
But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor.[106]
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly those prescribed or imposed by the Constitution - would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation - made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution - to settle it. This explains why, in Miller v. Johnson, it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended - as it is in our 1935 Constitution - "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." In fact, this very Court - speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution - declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government.[107] (citations omitted; emphasis supplied)In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial need for the adjustment This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all.”[108] Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster.
To be sure, the BSP rank-and-file employees merit greater concern from this Court. They represent the more impotent rank-and-file government employees who, unlike employees in the private sector, have no specific right to organize as a collective bargaining unit and negotiate for better terms and conditions of employment, nor the power to hold a strike to protest unfair labor practices. Not only are they impotent as a labor unit, but their efficacy to lobby in Congress is almost nil as R.A. No. 7653 effectively isolated them from the other GFI rank-and-file in compensation. These BSP rank-and-file employees represent the politically powerless and they should not be compelled to seek a political solution to their unequal and iniquitous treatment. Indeed, they have waited for many years for the legislature to act. They cannot be asked to wait some more for discrimination cannot be given any waiting time. Unless the equal protection clause of the Constitution is a mere platitude, it is the Court’s duty to save them from reasonless discrimination.
IN VIEW WHEREOF, we hold that the continued operation and implementation of the last proviso of Section 15(c), Article II of Republic Act No. 7653 is unconstitutional.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see dissenting.
Corona, and Callejo, Sr., JJ., on leave.
[1] Rollo, p. 7.
[2] Id., p. 9.
[3] i.e., (1) make the salary of the BSP personnel competitive to attract highly competent personnel; (2) establish professionalism and excellence at all levels in the BSP; and (3) ensure the administrative autonomy of the BSP as the central monetary authority
[4] Rollo, pp. 8-10.
[5] Id., pp. 10-12, quoting Former Senator Maceda, Record of the Senate, First Regular Session, March 15 to June 10, 1993, Vol. IV, No. 86, p. 1087.
[6] Id., pp. 12-14.
[7] Id., p. 14.
[8] Id., pp. 2-5.
[9] Id., pp. 14-15.
[10] Id., pp. 62-75.
[11] Id., pp. 76-90.
[12] 1987 Constitution, Art. III, § 1.
[13] No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
[14] Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No. L-27113, 61 SCRA 93, 110-111 (November 19, 1974); Anucension v. National Labor Union, No. L-26097, 80 SCRA 350, 372-373 (November 29, 1977); Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, 86 SCRA 270, 275 (November 10, 1978); Dumlao v. Comelec, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); Ceniza v. Comelec, G.R. No. L-52304, 95 SCRA 763, 772-773 (January 28, 1980); Himagan v. People, G.R. No. 113811, 237 SCRA 538 (October 7, 1994); The Conference of Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, 243 SCRA 666, 677 (April 21, 1995); JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319, 331–332 (August 5, 1996); and Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278, 288-289 (January 20, 1999). See also Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (May 31, 1957); Vera v. Cuevas, Nos. L-33693-94, 90 SCRA 379, 388 (May 31, 1979); and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873, and 115931, 235 SCRA 630, 684 (August 25, 1994).
[15] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, 175 SCRA 343 (July 14, 1989). See Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278 (January 20, 1999).
[16] Ichong, etc., et al. v. Hernandez, etc. and Sarmiento, No. L-7995, 101 Phil. 1155 (May 31, 1957), citing 2 Cooley, Constitutional Limitations, pp. 824-825.
[17] Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278 (January 20, 1999); Dumlao v. Comelec, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); and Himagan v. People, G.R. No. 113811, 237 SCRA 538 (October 7, 1994). See also JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319, 331-332 (August 5, 1996); The Conference of Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, 243 SCRA 666, 677 (April 21, 1995); Ceniza v. Comelec, No. L-52304, 95 SCRA 763, 772 (January 28, 1980); Vera v. Cuevas, Nos. L-33693-94, 90 SCRA 379 (May 31, 1979); and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 and 115931, 235 SCRA 630 (August 25, 1994).
[18] Dumlao v. Comelec, No. L-52245, 95 SCRA 392, 405 (January 22, 1980), citing Peralta v. Comelec, No. L-47771, No. L-47803, No. L-47816, No. L-47767, No. L-47791 and No. L-47827, 82 SCRA 30 (March 11, 1978); Rafael v. Embroidery and Apparel Control and Inspection Board, No. L-19978, 21 SCRA 336 (September 29, 1967); and Ichong, etc., et al. v. Hernandez, etc. and Sarmiento, No. L-7995, 101 Phil 1155 (May 31, 1957). See also JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319 (August 5, 1996); Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993); and Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, 86 SCRA 270, 275 (November 10, 1978).
[19] People v. Carlos, No. L-239, 78 Phil. 535 (June 30, 1947).
[20] See Mabanag v. Lopez Vito, No. L-1123, 78 Phil. 1 (March 5, 1947); Casco Philippine Chemical Co., Inc. v. Gimenez, No. L-17931, 7 SCRA 347 (February 28, 1963); Morales v. Subido, No. L-29658, 27 SCRA 131 (February 27, 1969); and Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993).
[21] People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937).
[22] Id., citing U. S. v. Ten Yu, 24 Phil. 1, 10 (December 28, 1912); Case v. Board of Health, 24 Phil. 250, 276 (February 4, 1913); and U. S. v. Joson, No. 7019, 26 Phil. 1 (October 29, 1913).
[23] Dumlao v. COMELEC, No. L-52245, 95 SCRA 392, 404 (January 22, 1980).
[24] Medill v. State, 477 N.W.2d 703 (Minn. 1991) (followed with reservations by, In re Cook, 138 B.R. 943 [Bankr. D. Minn. 1992]).
[25] Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949 (1935); Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941); Louisville & N. R. Co. v. Faulkner, 3 G.R. No. L-29646 07 S.W.2d 196 (Ky. 1957); and Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517 (1954).
[26] Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992)
[27] 307 N.Y. 493, 121 N.E.2d 517 (1954).
[28] Id.
[29] No. L-3708, 93 Phil. 68 (May 18, 1953).
[30] On the constitutionality of Republic Act No. 342, Section 2 provides that all debts and other monetary obligations contracted before December 8, 1941, any provision in the contract creating the same or in any subsequent agreement affecting such obligation to the contrary notwithstanding, shall not be due and demandable for a period of eight (8) years from and after settlement of the war damage claim of the debtor by the Philippine War Damage Commission; and Section 3 of said Act provides that should the provision of Section 2 be declared void and unenforceable, then as regards the obligation affected thereby, the provisions of Executive Order No. 25 dated November 18, 1944, as amended by Executive Order No. 32, dated March 10, 1945, relative to debt moratorium, shall continue to be in force and effect, any contract affecting the same to the contrary notwithstanding, until subsequently repealed or amended by a legislative enactment. It thus clearly appears in said Act that the nullification of its provisions will have the effect of reviving the previous moratorium orders issued by the President of the Philippines.
[31] Rutter v. Esteban, G.R. No. L-3708, 93 Phil. 68 (May 18, 1953).
[32] 148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941).
[33] 307 S.W.2d 196 (Ky. 1957).
[34] Id.
[35] People v. Dela Piedra, G.R. No. 121777, 350 SCRA 163 (January 24, 2001).
[36] People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937). Parenthetically, this doctrine was first enunciated in the 1886 case of Yick Wo v. Hopkins (118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220), wherein the U.S. Supreme Court, speaking through Justice Matthews, declared: “…Though the law itself be fair on its face and impartial in appearances, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”
[37] Rollo, pp. 12-14.
[38] Formerly the Home Insurance and Guaranty Corporation (HIGC).
[39] R.A. No. 8799 (2000), Section 7.2 provides: All positions of the Commission shall be governed by a compensation and position classification systems and qualification standards approved by the Commission based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plan in the Bangko Sentral ng Pilipinas and other government financial institutions and shall be subject to periodic review by the Commission no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and efficiency. The Commission shall, therefore, be exempt from laws, rules, and regulations on compensation, position classification and qualification standards. The Commission shall, however, endeavor to make its system conform as closely as possible with the principles under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended).
[40] People v. Dela Piedra, G.R. No. 121777, 350 SCRA 163 (January 24, 2001).
[41] People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937).
[42] P.D. No. 985 (August 22, 1976).
[43] R.A. No. 6758, Section 2, the policy of which is to “provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions.”
[44] Section 3(a) provides that “All government personnel shall be paid just and equitable wages; and while pay distinctions must necessarily exist in keeping with work distinctions, the ratio of compensation for those occupying higher ranks to those at lower ranks should be maintained at equitable levels giving due consideration to higher percentages of increases to lower level positions and lower percentage increases to higher level positions.”
[45] Section 3(b) states that “Basic compensation for all personnel in the government, and government-owned or controlled corporations (GOCCs) and financial institutions (GFIs) shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages.”
[46] Id., Section 9.
[47] Section 5 of the 1987 Constitution provides: “The Congress shall provide for the standardization of compensation of government officials, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.”
[48] R.A. No. 7653, Sections 1 and 3.
[49] Id., Sections 110 and 113.
[50] R.A. No. 7653, Section 50.
[51] Id., Sections 1 and 3.
[52] R.A. No. 8289 [SBGFC], Section 8; R.A. No. 9302 [PDIC], Section 2.
[53] R.A. No. 8799 (2000), Section 7.2.
[54] 415 U.S. 361 (1974).
[55] Id.
[56] Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993).
[57] G.R. No. 146494 ( July 14, 2004).
[58] Constitution, Article VIII, Section 1.
[59] See Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703, 713-715 (November 11, 1993).
[60] [2002] EWHC 191 (Admin).
[61] Id. The significance of international human rights instruments in the European context should not be underestimated. In Hooper for example, the case was brought on the alleged denial of a right guaranteed by the ECHR, given domestic effect in the U.K. through its Human Rights Act 1998 (HRA), and the ECHR, as one of the contracting parties. Also, in Wilson v United Kingdom, (30668/96) (2002) 35 E.H.R.R. 20 (ECHR), the European Court of Human Rights took into account the requirements of ILO Conventions Nos. 87 and 98, and of the European Social Charter of 1961, in ruling that the United Kingdom had breached the applicants' freedom of association. See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[62] J.M. Tuason and Co., Inc. v. Land Tenure Administration, No. L-21064, 31 SCRA 413, 435 (February 18, 1970).
[63] See Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777 (July 14, 1989).
[64] People v. Vera, supra, citing U. S. v. Ten Yu, 24 Phil. 1, 10 (December 28, 1912); Case v. Board of Health and Heiser, supra; and U. S. v. Joson, supra. See Peralta v. COMELEC, No. L-47771, No. L-47803, No. L-47816, No. L-47767, No. L-47791 and No. L-47826, 82 SCRA 30 (March 11, 1978), citing Cooper v. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law 56 (3rd ed. 1942).
[65] Gerald Gunther, Constitutional Law 586-589 (11th ed. 1985).
[66] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
[67] See Gay Moon, Complying with Its International Human Rights Obligations: The United Kingdom and Article 26 of the International Covenant on Civil and Political Rights, 3 E.H.R.L.R. 283-307 (2003).
[68] (No.2) (A/6) 1 E.H.R.R. 252 (1979-80) (ECHR).
[69] The European Court has also taken an even more restricted approach to Article 14, asking only whether the treatment at issue had a justified aim in view or whether the authorities pursued “other and ill-intentioned designs.” National Union of Belgian Police v. Belgium, 1 E.H.R.R. 578 (1979-80); and Swedish Engine Drivers' Union v. Sweden 1 E.H.R.R. 617 (1979-80).
[70] Abdulaziz v. United Kingdom, (A/94) 7 E.H.R.R. 471 (1985) (ECHR).
[71] 23 E.H.R.R. 364 (1997).
[72] Id.
[73] Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[74] Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003). See Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
[75]Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[76] Article 26 of the ICCPR provides that:
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
[77] Article 5(b) of CERD requires States to protect individuals from (racially discriminatory) violence "whether inflicted by government officials or by any individual group or institution."
[78] Article 1 of the American Conventions on Human Rights provides that:
“The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition;…”
[78] Article 26 of the ICCPR is echoed in its broad proscription of discrimination by Article 3 of the African Charter which provides that:
“1. Every individual shall be equal before the law.[80] Article 14 of the European Conventions on Human Rights provides that:
2. Every individual shall be entitled to equal protection of the law.”
“The
enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or
other status.”
[81] See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003); and Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
[82] Also, Articles 2 and 3 of the ICCPR require that Contracting States agree to "respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," and (Article 3) "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." Other examples include: Article 2 of CEDAW, which require States Parties to the Convention not only to "embody the principle of the equality of men and women in their national constitutions or other appropriate legislation" but also "to ensure, through law and other appropriate means, the practical realization of this principle"; and Article 5(b) of CERD requires States to protect individuals from (racially discriminatory) violence "whether inflicted by government officials or by any individual group or institution." See also Articles 2 and 3 CSECR, and Article 2 of the African Charter, which is similar to Article 2 of the ICCPR. Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[83] Article 7 of the ICESCR provides the right:
“. . . to the enjoyment of just and favourable conditions of work ... in particular ... fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work [and] ... equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.”[84] See Convention Nos. 100 of 1951, 103 of 1952, 111 of 1958, 118 of 1962 and 156 of 1981 which deal respectively with equal pay for men and women; maternity rights; discrimination in employment and occupation; equality of treatment in social security; and workers with family responsibilities. Convention No. 100 has been ratified by no less than 159 countries and Convention No. 111 by 156 (these being two of the eight fundamental Conventions the ratification of which is all but compulsory). Conventions Nos. 103, 118 and 156 have been ratified by 40, 38 and 34 countries, respectively.
[85] For example, Articles 11, 12 and 13 of CEDAW require the taking of "all appropriate measures" to eliminate discrimination against women in the fields of employment, health care, and other areas of economic life including the right to benefits and financial services. Article 15 of the African Charter provides a right for "every individual" to "equal pay for equal work," which, like Article 7 of the ICESCR, applies whether an individual is employed by the state or by a private body. The Council of Europe's Revised Social Charter provides for the "right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex" and to the protection of workers with family responsibilities. The Social Charter of the Council of Europe also incorporates a commitment on the part of Contracting States to "recognise the right of men and women workers to equal pay for work of equal value" as well as that of children, young persons and women to protection in employment (the latter group in connection with pregnancy and childbirth), and rights for migrant workers. Article 5 CERD does not merely require Contracting States to eliminate race discrimination in their own practices but also obliges them to prohibit race discrimination "in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of economic, social and cultural rights," in particular, employment rights including rights to "just and favourable conditions of work", protection against unemployment, "just and favourable remuneration" and to form and join trade unions. See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[86] Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
[87] SWM Broeks v. the Netherlands (172/1984).
[88] F.H. Zwaan-de Vries v. the Netherlands (182/1984).
[89] S.W.M. Broeks v. Netherlands (172/1984), paragraph 12.4.
[90] Human Rights Committee, General Comment No. 18 (1989).
[91] Id. In the Belgian Linguistics case, (No.2) (A/6) (1979-80) 1 E.H.R.R. 252 (ECHR), the European Court of Human Rights referred to the “aims and effects” of the measure challenged under Article14 of the European Convention, implying that indirect as well as direct discrimination could be contrary to the provision. And in Thlimmenos v Greece, 31 E.H.R.R. 15 (2001), the European Court ruled that discrimination contrary to the European Convention had occurred when a man who had been criminalised because of his refusal (as a Jehovah's Witness and, therefore, a pacifist) to wear a military uniform during compulsory military service, was subsequently refused access to the chartered accountancy profession because of a rule which barred those with criminal convictions from being chartered. According to the Court:
“[We have] so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification ... However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
See also Jordan v. United Kingdom (App. No. 24746/94), para.154. Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
[92] The 1987 Constitutional provisions pertinent to social justice and the protection granted to Labor are:
PREAMBLE:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and promulgate this Constitution.
ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES: PRINCIPLES
SECTION 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.
SECTION 10. The State shall promote social justice in all phases of national development.
SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
SECTION 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.
ARTICLE III: BILL OF RIGHTS
SECTION 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.
ARTICLE IX: CONSTITUTIONAL COMMISSIONS
B. THE CIVIL SERVICE COMMISSION
SECTION 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.
ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY
SECTION 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.
SECTION 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.
ARTICLE XIII: SOCIAL JUSTICE AND HUMAN RIGHTS
SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
LABOR
SECTION 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and promulgate this Constitution.
ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES: PRINCIPLES
SECTION 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.
SECTION 10. The State shall promote social justice in all phases of national development.
SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
SECTION 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.
ARTICLE III: BILL OF RIGHTS
SECTION 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.
ARTICLE IX: CONSTITUTIONAL COMMISSIONS
B. THE CIVIL SERVICE COMMISSION
SECTION 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.
ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY
SECTION 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.
SECTION 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.
ARTICLE XIII: SOCIAL JUSTICE AND HUMAN RIGHTS
SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
LABOR
SECTION 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.
[93] International School Alliance of Educators v. Quisumbing, G.R. No. 128845, 333 SCRA 13 (June 1, 2000).
[94] See Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, 175 SCRA 343 (July 14, 1989).
[95] Republic v. MERALCO, G.R. Nos. 141314 and 141369, 401 SCRA 130 (April 9, 2003).
[96] Sanders v. Veridiano II, No. L-46930, 162 SCRA 88 (June 10, 1988).
[97] Republic v. MERALCO, G.R. Nos. 141314 and 141369, 401 SCRA 130 (April 9, 2003).
[98] Francisco v. House of Representatives, G.R. No. 160261, (November 10, 2003).
[99] Id.
[100] Joaquin G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 160 (2003).
[101] Globe-Mackay Cable and Radio Corp. v. NLRC, G.R. No. 82511, 206 SCRA 701 (March 3, 1992).
[102] Uy v. COA, G.R. No. 130685, 328 SCRA 607 (March 21, 2000).
[103] Ibid.
[104] Calalang vs. Williams, No. 47800, 70 Phil. 726 (December 2, 1940).
[105] See Dumlao v. COMELEC, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); Peralta v. Comelec, Nos. L-47771, L-47803, L-47816, L-47767, L-47791, and L-47827, 82 SCRA 30 (March 11, 1978); Felwa v. Salas, No. L-26511, 18 SCRA 606 (October 29, 1966); Rafael v. Embroidery and Apparel Control and Inspection Board, No. L-19978, 21 SCRA 336, (September 29, 1967); People v. Carlos, No. L-239, 78 Phil. 535 (June 30, 1947); and Ichong, etc., et.al. v. Hernandez, etc. and Sarmiento, No. L-7995, 101 Phil. 1155 (May 31, 1957).
[106] Belarmino v. Employees’ Compensation Commission, G.R. No. 90204, 185 SCRA 304 (May 11, 1990).
[107] Javellana v. The Executive Secretary, No. L-36142, L-36164, L-36165, L-36236 and L-36283, 50 SCRA 30 (March 31, 1973).
[108] 1987 Constitution, Article II, Section 9.
CONCURRING OPINION
CHICO-NAZARIO, J.:
Does Sec. 15(c), Article II, Republic Act No. 6753,[1] which allows the exemption of BSP employees occupying salary grade (SG) 20 and above from the coverage of Rep. Act No. 6758[2] result in a denial of petitioner’s constitutional right to equal protection of the law?
I submit that it does and said provision should therefore be declared unconstitutional on the ground that the division between BSP employees covered from SG 19 down and from SG 20 up is purely arbitrary. Even given the wide discretion vested in Congress to make classifications, it is nonetheless clear that the lawmaking body abused its discretion in making such classification.
It is not disputed that all that is required for a valid classification is that it must be reasonable, i.e., that it must be based on substantial distinctions which make for real differences; it must be germane to the purpose of the law; it must not be limited to existing conditions and it must apply equally to each member of the class.[3]
In the instant case, the classification was justified on the need of the BSP to compete in the labor market for economists, accountants, lawyers, experts in security, printing, commercial and rural banking, financial intermediation fund management, and other highly technical and professional personnel,[4] which it could not do unless personnel occupying top positions are exempted from the coverage of Rep. Act No. 6758, the Salary Standardization Law.
Under Rep. Act No. 6758, however, professional supervisory positions are covered by SG 9 to SG 33 which includes:
(R)esponsible positions of a managerial character involving the exercise of management functions such as planning, organizing, directing, coordinating, controlling and overseeing within delegated authority the activities of an organization, a unit thereof or of a group, requiring some degree of professional, technical or scientific knowledge and experience, application of managerial or supervisory skills required to carry out their basic duties and responsibilities involving functional guidance and control, leadership, as well as line supervision. These positions require intense and thorough knowledge of a specialized field usually acquired from completion of a bachelor’s degree or higher degree courses.SG 33 is assigned to the President of the Philippines; SG 32 is for the Vice-President, Senate President, Speaker of the House and Chief Justice of this Court. SG 31 is for senators, associate justices of this Court, chairpersons of the constitutional commissions, department secretaries and other positions of equivalent rank while SG 30 is assigned to the constitutional commissioners and other positions of equivalent rank.[6]
The positions in this category are assigned Salary Grade 9 to Salary Grade 33.[5] (Underscoring supplied)
Economists, accountants, lawyers and other highly technical and professional personnel are covered under SG 9 to 29 as already adverted to.
Classification in law is the grouping of persons/objects because they agree with one another in certain particulars and differ from others in those same particulars. In the instant case, however, SG 20 and up do not differ from SG 19 and down in terms of technical and professional expertise needed as the entire range of positions all “require intense and thorough knowledge of a specialized field usually acquired from completion of a bachelor’s degree or higher courses.”
Consequently, if BSP needs an exemption from Rep. Act No. 6758 for key positions in order that it may hire the best and brightest economists, accountants, lawyers and other technical and professional people, the exemption must not begin only in SG 20.
Under the circumstances, the cut-off point, the great divide, between SG 19 and 20 is entirely arbitrary as it does not have a reasonable or rational foundation. This conclusion finds support in no less than the records of the congressional deliberations, the bicameral conference committee having pegged the cut-off period at SG 20 despite previous discussions in the Senate that the “executive group” is “probably” SG 23 and above.[7]
Moreover, even assuming that the classification is reasonable, nonetheless, its continued operation will result in hostile discrimination against those occupying grades 19 and below.
As pointed out by Mr. Justice Puno, some other government corporations, by law, now exempt all their employees from the coverage of Rep. Act No. 6758. BSP employees occupying SG 19 and below, however, shall remain under Rep. Act No. 6758 considering the rule that the subject classification, to be valid, must not be limited only to conditions existing as of the time the law was passed. Thus, while BSP employees from SG 19 down will continue to be covered under Rep. Act No. 6758, other government employees of the same class and occupying the same positions in government corporations will be exempt.
I therefore concur with Justice Puno in that respect and, considering his thorough discussion, I have nothing more to add thereto.
[1] New Central Bank Act.
[2] Salary Standardization Law.
[3] People v. Vera, 65 Phil. 56.
[4] V Records of the House of Representatives, 9th Congress, 1st Session 783 (31 March 1993) at 166.
[5] Section 5(a), Rep. Act No. 6758.
[6] Sections 7 and 8, ibid.
[7] IV Records of the Senate, 9th Congress, 1st Session 1086-87 (05 June 1993).
DISSENTING OPINION
PANGANIBAN, J.:
With all due respect, I dissent. I believe that it would be uncalled for, untimely and imprudent for this Court to void the last proviso of the second paragraph of Section 15(c) of Chapter 1 of Article II of Republic Act (RA) 7653. In the first place, the assailed provision is not unconstitutional, either on its face or as applied, and the theory of relative constitutionality finds no application to the case at bar. In the second place, a becoming respect on the part of this Court for Congress as a coequal and coordinate branch of government dictates that Congress should be given ample opportunity to study the situation, weigh its options and exercise its constitutional prerogative to enact whatever legislation it may deem appropriate to address the alleged inequity pointed out by petitioner.
For the record, I am not against the exemption from the Salary Standardization Law of the Bangko Sentral ng Pilipinas (BSP) rank and file employees (with Salary Grade 19 and below). Neither am I against increases in their pay. I simply submit that (1) the factual milieu of this case does not show a denial of equal protection, (2) the theory of relative constitutionality does not come into play, and (3) petitioner should have addressed its plaint, not to this Court, but to Congress in the first instance. I am confident that given sufficient opportunity, the legislature will perform its constitutional duty accordingly. Hence, there is no need or warrant for this Court to intervene in legislative work.
Theory of Relative Constitutionality
Not Applicable to Extraneous Circumstances
From the manner in which it has been utilized in American and Philippine jurisprudence, however, this novel theory finds relevance only when the factual situation covered by an assailed law changes, not when another law is passed pertaining to subjects not directly covered by the former. Thus, the theory applies only when circumstances that were specifically addressed upon the passage of the law change. It does not apply to changes or alterations extraneous to those specifically addressed. To prove my point, allow me then to tackle seriatim the cases relied upon in the ponencia.[1]
Cited American Cases
Not Applicable to and
Not in Pari Materia with
Present Facts
Medill.[2] The constitutionality issue in Medill v. State was raised by a bankruptcy trustee in regard to a statute exempting damages that were awarded to the claimants who suffered as a result of an automobile accident.[3] Specifically, the contested provision exempted from “attachment, garnishment, or sale on any final process issued from any court” (1) general damages and (2) future special damages awarded in rights of action filed for injuries that were caused to the person of a debtor or of a relative.[4]
The Supreme Court of Minnesota said that the general damages portion of the right of action filed by claimants for personal injuries sustained in fact represented the monetary restoration of the physically and mentally damaged person; hence, claims for such damages could never constitute unreasonable amounts for exemption purposes.[5] Such claims were thus fully exempt. It added that the legislature had assigned the role of determining the amounts that were reasonable to the state’s judicial process.[6]
While a statute may be constitutional and valid as applied to one set of facts and invalid in its application to another, the said Court limited its discussion only to the set of facts as presented before it[7] and held that the statute was “not unconstitutional.”[8] Distinguishing the facts of that case from those found in its earlier rulings,[9] it concluded that -- by limiting the assets that were available for distribution to creditors[10] -- the contested provision therein was a bankruptcy relief for protecting not only human capital,[11] but also the debtor’s fundamental needs.
Cook.[12] The bankruptcy trustee in In re Cook also objected to the same statutory exemption, inter alia, asserted by the debtors in another personal injury claim.
The US Bankruptcy Court, following Medill, held that such exemption was “violative of x x x the Minnesota Constitution,”[13] as applied to pre-petition special damages,[14] but not as applied to general damages.[15] The statute did not provide for any limitation on the amount of exemption as to the former type of damages.[16] Neither did it set any objective criteria by which the bankruptcy court may limit its size.[17]
Nashville.[18] The plaintiff in Nashville v. Walters questioned the constitutionality of a Tennessee statute imposing upon railroad companies one half of the total cost of grade separation in every instance that the state’s Highway Commission issued an order for the elimination of a grade crossing. The plaintiff rested its contention not on the exercise of police power that promoted the safety of travel, but on the arbitrariness and unreasonableness of the imposition that deprived it of property without due process of law.[19]
Reversing the judgment that the Supreme Court of Tennessee had rendered against the plaintiff, the US Supreme Court however did not declare the statute unconstitutional.[20] Instead, it remanded the case, because the determination of facts showing arbitrariness and unreasonableness should have been made by the Tennessee Supreme Court in the first place.[21] It enumerated the revolutionary changes incident to transportation wrought in the 1930s by the widespread introduction of motor vehicles; the assumption by the federal government of the functions of a road builder; the resulting depletion of rail revenues; the change in the character, construction and use of highways; the change in the occasion for the elimination of grade crossings, and in the purpose and beneficiaries of such elimination; and the change in the relative responsibility of railroads and vehicles moving on the highways.[22] In addition, it held that the promotion of public convenience did not justify requiring a railroad company -- any more than others -- to spend money, unless it was shown that the duty to provide such convenience rested upon that company.[23] Providing an underpass at one’s own expense for private convenience, and not primarily as a safety measure, was a denial of due process.[24]
Atlantic.[25] In Atlantic v. Ivey, the plaintiff filed an action for damages against the railroad company for the killing of a cow on an unfenced right of way of the railway. The defendant pointed out that the original Florida Act of 1889 and its later amendments in the 1940s had required railroad companies to fence their tracks for the protection and safety of the traveling public and their property against livestock roaming at large. Thus, the defendant averred that -- without imposing a similar fencing requirement on the owners of automobiles, trucks and buses that carry passengers upon unfenced public highways of the state where such vehicles operated -- the equal protection guarantees of the state and federal constitutions would be violated.[26]
Reversing the lower court’s judgment for the plaintiff, the Supreme Court of Florida held that the application of the contested statutes under then existing conditions was violative of the equal protection clause.[27] Citing Nashville, that Court took judicial notice of the fact that there were no motor carriers on public roads when the statutes were originally enacted. It also reasoned that the statutes were enacted in the exercise of the state’s police power[28] and were intended for the protection of everyone against accidents involving public transportation. Although motor-driven vehicles and railroad carriers were under a similar obligation to protect everyone against accidents to life and property when conducting their respective businesses, the hazard of accidents by reason of cattle straying onto the line of traffic of motor-driven vehicles was greater than that which arose when cattle strayed onto the line of traffic of railroad carriers.[29] Yet the burden of expenses and penalties that were rendered in favor of individuals who were neither shippers nor passengers was imposed only on railroad carriers.[30]
In addition, the railroad carriers would be held liable for attorney’s fees and double the value of the animals killed in their railways, without even requiring the plaintiffs who had sued them to prove the negligence of such carriers in operating their equipment.[31] Although it was argued that motor-driven vehicles had no authority to fence on state and county highways over which they operated, the legislature could nevertheless authorize and require them to provide similar protection; or, in default thereof, to suffer similar penalties that were incidental to using such public roads for generating profit and serving the public.[32]
Louisville.[33] The plaintiff in Louisville v. Faulkner also filed an action against defendant-railroad company to recover the value of her mule that had strayed from her premises and got struck and killed by the company’s train.[34] The judgment of the lower court for the plaintiff was based on the fact that the defendant did not offer any evidence to rebut the prima facie presumption of the latter’s negligence under Kentucky statutes.[35]
The Court of Appeals of Kentucky held the contested provision unconstitutional and reversed the said judgment.[36] Citing both Nashville and Atlantic, the appellate court said that because such legislation applied to all similar corporations and was aimed at the safety of all persons on a train and the protection of their property, it was sustained from its inception in 1893; however, under changed conditions, it could no longer be so. The court recognized the fact that, in the 1950s, the inauguration and development of transportation by motor vehicles on public highways created even greater risks, not only to the occupants of such vehicles but also to domestic animals.[37] Yet, the operators of these vehicles were not subjected to the same extraordinary legal responsibility of proving that for the killing of those animals on public roads, they were free from negligence, unlike railroad companies that struck and killed such animals on private rights of way.[38]
Vernon.[39] The plaintiff in Vernon v. City of Mount Vernon sought to declare unconstitutional a city zoning ordinance which had limited the business use of its realty, locally known as the “Plaza,” only to the parking of automobiles and its incidental services.[40]
The Court of Appeals of New York ruled that the ordinance was unconstitutional.[41] That ruling also affirmed the unanimous judgment earlier rendered in favor of the plaintiff. Again citing Nashville, the New York court ruled in the main that, no matter how compelling and acute the community traffic problem might be as to reach a strangulation point, the solution did not lie in placing an undue and uncompensated burden on a landowner in the guise of a regulation issued for a public purpose.[42] Although for a long time the plaintiff’s land had already been devoted to parking, the ordinance that prohibited any other use for it was not “a reasonable exercise of the police power.”[43]
While the city’s common council had the right to pass ordinances respecting the use of property according to well-considered and comprehensive plans designed to promote public health, safety and general welfare, the exercise of such right was still subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably. Thus, the zoning ordinance could not preclude the use of property for any purpose for which it was reasonably adapted.[44] Although valid when adopted in 1927, the ordinance was stricken down, because its operation under changed conditions in the 1950s proved confiscatory, especially when the value of the greater part of the land -- to be used, for instance, in the erection of a retail shopping center -- was destroyed.[45]
Finally, Murphy v. Edmonds.[46] An automobile driver and her husband brought action against a tractor-trailer driver and his employer and sought damages for the severe injuries she had sustained in a collision. Raised in issue mainly was the constitutionality of the statutory cap on noneconomic damages in personal injury actions.[47]
Affirming the judgment of the Court of Special Appeals rejecting all challenges to the validity of the law, the Court of Appeals of Maryland held that there was no irrationality, arbitrariness, or violation of equal protection in the legislative classification drawn between (1) the less seriously injured tort claimants whose noneconomic damages were less than the statutory cap; and (2) the more seriously injured tort claimants whose noneconomic damages were greater than, and thus subject to, the statutory cap.[48] Although no express equal protection clause could be found in Maryland’s Constitution, the due process clause therein nevertheless embodied equal protection to the same extent as that found in the Fourteenth Amendment[49] of the federal Constitution.[50]
Indeed, the right to recover full damages for a noneconomic injury was recognized by common law even before the adoption of the state’s Constitution, but the said court declared that there was no vested interest in any rule ordained by common law.[51] Concluding that only the traditional “rational basis test” should be used, the appellate court also rejected the lower court’s view of the right to press a claim for pain and suffering as an “important right” requiring a “heightened scrutiny test” of the legislative classification.[52] Under the “rational basis test,” such legislative classification enjoyed a strong presumption of constitutionality and, not being clearly arbitrary, could not therefore be invalidated.[53]
Moreover, the law was an economic response to a legislatively perceived crisis concerning not only the availability, but also the cost of liability insurance in the state.[54] Putting a statutory cap on noneconomic damages was “reasonably related to a legitimate legislative objective,”[55] for it led to a greater ease in the calculation of insurance premiums, thus making the market more attractive to insurers. Also, it ultimately reduced the cost of such premiums and made insurance more affordable to individuals and organizations that perform needed medical services.[56]
From the foregoing discussion, it is immediately evident that not one of the above-cited cases is either applicable to or in pari materia with the present case.
Medill not only upheld the constitutionality of the contested provision therein, but also categorically stated that the peculiar facts of the case prompted such declaration. General damages were declared exempt; the law allowing their exemption was constitutional. Cook simply affirmed Medill when the same contested provision was applied to an issue similar to that which was raised in the latter case, but then declared that provision unconstitutional when applied to another issue. Thus, while general damages were also declared exempt, the claims for special damages filed prior to the filing of a petition for relief were not, and the law allowing the latter’s exemption was unconstitutional.
The court’s action was to be expected, because the issue on special damages in Cook was not at all raised in Medill, and there was no precedent on the matter in Minnesota, other than the obiter dictum -- if it can be called one -- in the latter case.[57] Had that issue been raised in Medill, a similar conclusion would inevitably have been reached. In fact, that case already stated that while the court “need not decide whether special damages incurred prior to judgment x x x [were] to be exempt in order to decide the question”[58] on general damages raised therein, it felt that exempting special damages appeared reasonable and likely to be applied, following an earlier ruling in another case.[59]
Moreover, the facts of both Medill and Cook are not at all akin to so-called “changed conditions” prompting the declarations of constitutionality in the former and unconstitutionality in the latter. Such “altered circumstances” or “changed conditions” in these two cases refer to the non-exemption of special damages -- a subject matter distinct and separable, although covered by the same assailed statute. In fact, Cook precisely emphasized that “where a statute is not inherently unconstitutional, it may be found constitutional as applied to some separable subject matters, and unconstitutional as applied to others.”[60] In other words, it was the application of the contested provision therein to an entirely different and separable subject matter -- not the contested provision itself --that was declared unconstitutional, but the statute itself was not inherently unconstitutional to begin with.
Equally important, Nashville skirted the issue on constitutionality. The “changed conditions” referred to in that case, as well as in Atlantic and Louisville, were the revolutionary changes in the mode of transportation that were specifically covered by the statutes respectively imposing additional costs upon railroad companies only, requiring the fencing of their tracks, or solely compelling them to present evidence to rebut the presumption of their negligence. In Vernon, these “changed conditions” were deemed to be the economic changes in the 1950s, through which the normal business use of the land was unduly limited by the zoning ordinance that was intended to address the acute traffic problem in the community.
Nashville simply took judicial notice of the change in conditions which, together with the continued imposition of statutory charges and fees, caused deprivation of property without due process of law. Atlantic, Louisville and Vernon all relied upon Nashville, but then went further by rendering their respective contested provisions unconstitutional, because -- in the application of such provisions under “changed conditions” -- those similarly situated were no longer treated alike.
Finally, Murphy -- obviously misplaced because it made no reference at all to the quoted sentence in the ponencia -- even upheld the validity of its contested provision. There was no trace, either, of any “changed conditions.” If at all, the legislative classification therein was declared constitutional, because it was in fact a valid economic response to a legislatively perceived crisis concerning the availability and cost of liability insurance.
In the present case, no “altered circumstances” or “changed conditions” in the application of the assailed provision can be found. It verily pertains to only one subject matter, not separable subject matters as earlier pointed out in both Medill and Cook. Hence, its application remains and will remain consistent. Not inherently unconstitutional to begin with, it cannot now be declared unconstitutional. Moreover, herein petitioner miserably fails to demonstrate -- unlike in Nashville, Atlantic, Louisville, and Vernon -- how those similarly situated have not been treated alike in the application of the assailed provision.
Ponencia’s Reference to
“Changed Conditions” Misplaced
From Nashville to Murphy, it can be seen that all the contested statutes were passed in the exercise of police power -- the inherent power of the State to regulate liberty and property for the promotion of the general welfare.[61] The police measure may be struck down when an activity or property that ought to be regulated does not affect the public welfare; or when the means employed are not reasonably necessary for the accomplishment of the statute’s purpose, and they become unduly oppressive upon individuals.[62] As Justice Brandeis stresses in Nashville, “it may not be exerted arbitrarily or unreasonably.”[63]
In the case before us today, the assailed provision can be considered a police measure that regulates the income of BSP employees. Indisputably, the regulation of such income affects the public welfare, because it concerns not only these employees, but also the public in general -- from whose various credits the banks earn their income, the CB generates its revenues, and eventually these employees get their salaries and other emoluments.
Additionally, with the passage of RAs 6758 and 7653, the means employed by the State to accomplish its objectives are not unduly oppressive. They are in fact reasonably necessary, not only to attract the best and brightest bank regulatory personnel, but also to establish professionalism and excellence within the BSP in accordance with sound principles of management. Nothing, therefore, is arbitrary in the assailed provision; it cannot be stricken down.
With due respect, the ponencia’s reference to “changed conditions” is totally misplaced. In the above-cited US cases, this phrase never referred to subsequent laws or executive pronouncements, but rather to the facts and circumstances that the law or ordinance specifically addressed upon its passage or adoption. A statute that is declared invalid because of a change in circumstances affecting its validity belongs only to a class of emergency laws.[64] Being a manifestation of the State’s exercise of its police power, it is valid at the time of its enactment.
In contrast thereto, RA 7653 cannot be regarded as an emergency measure that is merely temporary in operation. It is not even a statute limited to the exigency that brought it about. The facts and circumstances it specifically addressed upon its passage have not been shown to have changed at all. Hence, the assailed provision of such a declaratory statute cannot be invalidated.
Unlike congested traffic or motor-driven vehicles on public roads, the payment of salaries at differing scales in various GFIs vis-à-vis in the BSP, is not such a change in conditions as would cause deprivation of property without due process of law. Petitioner’s members have not been deprived of their right to income as mandated by law. They have not received less than what they were entitled to ever since RA 7653 was passed eleven years ago.
To repeat, the factual situation that the assailed provision specifically addressed upon passage of this law has not changed. The same substantive rights to a competitive and structured human resource development program existing then still exist now. Only the laws external to and not amendatory of this law did. Even if these new laws were to be considered as “changed conditions,” those who have been affected in the BSP (as will be shown later) are not at all similarly situated as those in the GFIs to compel their like treatment in application.
In addition, the rulings in all the above-cited American cases --although entitled to great weight[65] -- are merely of persuasive effect in our jurisdiction[66] and cannot be stare decisis.[67] These are not direct rulings of our Supreme Court[68] that form part of the Philippine legal system.[69]
Granting gratia argumenti that the cited cases are to be considered binding precedents in our jurisdiction, Nashville -- the only one federal in character -- does not even make a categorical declaration on constitutionality. Furthermore, Murphy maintains that “[s]imply because a legal principle is part of the common law x x x does not give it any greater degree of insulation from legislative change.”[70] Common law, after all, is “a growing and ever-changing system of legal principles and theories x x x.”[71]
Every statute is presumed constitutional.[72] This axiom reflects the respect that must be accorded to the wisdom, integrity and patriotism of the legislature that passed it and to the executive who approved it.[73] Understandably, therefore, the judiciary should be reluctant to invalidate laws.[74] Medill precisely emphasizes that the “court’s power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”[75] Although that case continues by saying that unless it is inherently unconstitutional, a law “must stand or fall x x x not upon assumptions” the court may make, the ponencia is still dauntless in relying thereon to support its arguments.
Rutter Does Not Even Apply
Again with due respect, the ponencia’s citation of a local case, Rutter,[76] is also inappropriate. In the said case, appellant instituted an action to recover the balance, and interest thereon, of a contract of sale entered into barely four months prior to the outbreak of the Second World War.[77] The lower court, however, rendered judgment[78] for appellee who set up as defense[79] the moratorium clause embodied in RA 342.[80] The lower court reasoned further that the obligation sought to be enforced was not yet demandable under that law.[81]
Reversing the judgment, this Court invalidated[82] the moratorium clause,[83] not because the law was unconstitutional, but because both its continued operation and enforcement had become unreasonable and oppressive under postwar circumstances of observable reconstruction, rehabilitation and recovery of the country’s general financial condition.[84] The forced vigil suffered by prewar creditors was not only unwittingly extended from eight to twelve years, but was also imposed without providing for the payment of the corresponding interest in the interim.[85]
Thus, the success of their collection efforts, especially when their credits were unsecured, was extremely remote.[86] Moreover, the settlement of claims filed with the United States-Philippine War Damage Commission was not only uncertain but was also practically futile, for it depended entirely on the appropriations to be made by the US Congress.
The contested clause in Rutter was definitely a remedial measure passed to accord prewar debtors who suffered the ravages of war an opportunity to rehabilitate themselves within a reasonable time and to pay their prewar debts thereafter, thus preventing them from being victimized in the interim by their prewar creditors. The purpose having been achieved during the eight-year period, there was therefore no more reason for the law. Cessante ratione legis cessat et ipsa lex. When the reason for the law ceases, the law itself ceases. But it does not become unconstitutional.
The altered circumstances or changed conditions in Rutter were specifically the very circumstances that the law addressed at its passage; they were not at all extraneous circumstances like subsequent laws or executive pronouncements. The eight-year moratorium period having lapsed, the debtors’ concerns had been adequately addressed. It was now the turn of the creditors to be protected for the pre-war loans they granted.
In stark contrast, the contested proviso in the instant case is not a remedial measure. It is not subject to a period within which a right of action or a remedy is suspended. Since the reason for the law still subsists, the law itself including the challenged proviso must continue in existence and operation.
Relative Constitutionality
Not Based on Positive Law
Applying the concept of relative constitutionality strongly advocated in the ponencia, therefore, not only goes beyond the parameters of traditional constitutionalism, but also finds no express basis in positive law.[87] While it has been asserted that “a statute valid when enacted may become invalid by change in conditions to which it is applied,”[88] the present case has shown no such change in conditions that would warrant the invalidation of the assailed provision if applied under such conditions. Hence, no semblance of constitutional impuissance, other than its conjured possibility, can be seen. In a constitutional order that commands respect for coequal branches of government, speculation by the judiciary becomes incendiary and deserves no respectable place in our judicial chronicles.
The ponencia further contends that the principles of international law can operate to render a valid law unconstitutional. The generally accepted definition states that international law is a body of legal rules that apply between sovereign states and such other entities as have been granted international personality.[89] Government employees at the BSP with salary grades 19 and below are not such entities vested with international personality; any possible discrimination as to them, in the light of the principles and application of international law would be too far-fetched.
The dangerous consequences of the majority’s Decision in the present case cannot and should not be ignored. Will there now be an automatic SSL exemption for employees of other GFIs and financial regulatory agencies? Will such exemption not infringe on Congress’ prerogative? The ponencia overlooks the fact that the Bangko Sentral is not a GFI, but a regulatory body of GFIs and other financial/banking institutions. Therefore, it should not be compared with them. There is no parity. The Bangko Sentral is more akin to the Insurance Commission, the National Telecommunications Commission, and the Energy Regulatory Commission. Should not more appropriate comparisons be made with such regulatory bodies and their employees?
Respect for
Coequal Branch
The trust reposed in this Court is “not to formulate policy but to determine its legality as tested by the Constitution.”[90] “It does not extend to an unwarranted intrusion into that broad and legitimate sphere of discretion enjoyed by the political branches to determine the policies to be pursued. This Court should ever be on the alert lest, without design or intent, it oversteps the boundary of judicial competence.”[91] Judicial activism should not be allowed to become judicial exuberance. “As was so well put by Justice Malcolm: ‘Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act.’”[92]
Since Congress itself did not commit any constitutional violation or gravely abusive conduct when it enacted RA 7653, it should not be summarily blamed for what the ponencia calls “altered circumstances.”[93] Congress should be given the opportunity to correct the problem, if any. I repeat, I am not against exemption from the SSL of Bangko Sentral employees with salary grades 19 and below. Neither am I against increases in their pay. However, it is Congress, not this Court, that should provide a solution to their predicament, at least in the first instance.
The remedy against any perceived legislative failure to enact corrective legislation is a resort, not to this Court, but to the bar of public opinion. The electorate can refuse to return to Congress members who, in their view, have been remiss in the discharge of their constitutional duties.[94] Our Constitution presumes that, absent any inference of antipathy, improvident legislative decisions “will eventually be rectified by the democratic processes;”[95] and that judicial intervention is unwarranted, no matter how unwisely a political branch may have acted.[96]
It is only the legislature, not the courts, that “must be appealed to for the change.”[97] If, however, Congress decides to act, the choice of appropriate measure lies within its discretion. Once determined, the measure chosen cannot be attacked on the ground that it is not the best solution, or that it is unwise or inefficacious.[98] A law that advances a legitimate governmental interest will be sustained, even if it “works to the disadvantage of a particular group, or x x x the rationale for it seems tenuous.”[99] To compel this Court to make a more decisive but unnecessary action in advance of what Congress will do is a downright derogation of the Constitution itself, for it converts the judiciary into a super-legislature and invests it with a power that to it has never belonged.[100]
In the words of the great Sir William Blackstone, “there is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no[t].”[101] As Rousseau further puts it, “according to the fundamental compact, only the general will can bind the individuals, and there can be no assurance that a particular will is in conformity with the general will, until it has been put to the free vote of the people.”[102] Thus, instead of this Court invalidating a sovereign act, Congress should be given the opportunity to enact the appropriate measure to address the so-called “changed conditions.”
We cannot second-guess the mind of the legislature as the repository of the sovereign will. For all we know, amidst the fiscal crisis and financial morass we are experiencing, Congress may altogether remove the blanket exemption, put a salary cap on the highest echelons,[103] lower the salary grade scales subject to SSL exemption, adopt performance-based compensation structures, or even amend or repeal the SSL itself, but within the constitutional mandate that “at the earliest possible time, the Government shall increase the salary scales of x x x officials and employees of the National Government.”[104] Legislative reforms of whatever nature or scope may be taken one step at a time, addressing phases of problems that seem to the legislative mind most acute.[105] Rightly so, our legislators must have “flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.”[106] Where there are plausible reasons for their action, the Court’s “inquiry is at an end.”[107]
Under the doctrine of separation of powers and the concomitant respect for coequal and coordinate branches of government, the exercise of prudent restraint by this Court would still be best under the present circumstances.
Not Grossly Discriminatory
There is no question that Congress neither violated the Constitution nor gravely abused its discretion when it enacted “The New Central Bank Act” to establish and organize the BSP in 1993.[108] Indeed, RA 7653 is a valid legislative measure. Even the majority concedes that in enacting that law, Congress was well within its legislative powers. However, the ponencia argues that the subsequent enactment of laws granting “blanket exemption” from the coverage of the SSL of all employees in seven GFIs[109] has made the contested proviso “grossly discriminatory in its operation”[110] and therefore unconstitutional.
This conclusion, to my mind, is a non sequitur. The mere possible effect of related or unrelated laws on another law does not ipso facto make the latter unconstitutional. Besides, as already discussed, the theory of relative constitutionality is plainly inapplicable to the present facts. Moreover, the ponencia has assumed without proof that the BSP rank and file employees are factually and actually similarly situated as the rank and filers of Land Bank, SSS, GSIS, etc., and it is clear from the discussion in Mme. Justice Carpio Morales’ Dissenting Opinion that that is not really the case. In fact, there exist some substantial differences in scope of work, job responsibilities and so forth that would negate the ponencia’s assumption
No Indicium of Urgency
Other than its bare assertion that the continued implementation of the assailed provision[111] would cause “irreparable damage and prejudice”[112] to its members, petitioner also fails to show a minimum indicium of such extreme urgency as would impel this Court to second-guess Congress.
Briefly, petitioner contends that (1) the creation of two classes of employees within the BSP based on the salary grade corresponding to their positions[113] is unreasonable, arbitrary and capricious class legislation;[114] and (2) the law itself discriminates against rank and file employees of the BSP vis-à-vis those of GFIs.[115]
These contentions are utterly unsubstantiated. They find no support in law for granting the relief prayed for.
While it is true that all employees of the BSP are appointed under the authority of the Monetary Board, observe the same set of office rules and regulations, and perform their work in practically the same offices,[116] it is equally true that the levels of difficulty and responsibility for BSP employees with salary grades 19 and below are different from those of other BSP employees with salary grades 20 and above. All those classes of position belonging to the Professional Supervisory Category[117] of the Position Classification System[118] under RA 6758, for instance, are obviously not subjected to the same levels of difficulty, responsibility, and qualification requirements as those belonging to the Professional Non-Supervisory Category,[119] although to both categories are assigned positions that include salary grades 19 and 20.[120] To assert, as petitioner does, that the statutory classification is just an “artifice based on arbitrariness,”[121] without more, is nothing more than throwing a few jabs at an imaginary foe.
In like manner, petitioner’s denunciation of the proviso for allegedly discriminating against its members vis-à-vis the rank and filers of other GFIs ignores the fact that the BSP and the GFIs cited in the ponencia do not belong to the same category of government institutions, although it may be said that both are, broadly speaking, “involved” in banking and finance.[122] While the former performs primarily governmental or regulatory functions, the latter execute purely proprietary ones.
Moreover, the extent of damage or prejudice inflicted upon the BSP rank and file employees as a result of the proviso is not shown by any evidence on record. Indeed, neither the petitioner nor the ponencia demonstrate the injuries sustained.[123]
There is no indication whatsoever of the precise nature and extent of damages caused or to be caused to petitioner’s members by the continued implementation of such provision. Surely, with no leg to stand on, the allegation of petitioner that there is great disparity in compensation, allowances or benefits, cannot be considered to be stigmatizing and wounding to the psyche of thousands of its members.[124] In fact, BSP employees, in general, also share the same tribulations of workers and employees in other regulatory government offices.[125] Not even petitioner’s broad and bare claim of “transcendental importance”[126] can ipso facto generate alacrity on the part of this Court.
In the United States more than sixty years ago, Justice Brandeis delineated the famous canons of avoidance under which their Supreme Court had refrained from passing upon constitutional questions. One such canon is that the Court must “not anticipate a question of constitutional law in advance of the necessity of deciding it x x x. It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”[127] In addition, the Court must not “pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”[128]
Applying to this case the contours of constitutional avoidance Brandeis brilliantly summarized, this Court may choose to ignore the constitutional question presented by petitioner, since there is indeed some other ground upon which this case can be disposed of -- its clear lack of urgency, by reason of which Congress should be allowed to do its primary task of reviewing and possibly amending the law.
Taking cognizance of this case and disposing of, or altogether ignoring, the constitutional question leads us to the same inevitable conclusion: the assailed provision should not be declared “unconstitutional, unless it is clearly so.”[129] Whichever path is chosen by this Court, I am of the firm belief that such provision cannot and should not be declared unconstitutional. Since the authority to declare a legal provision void is of a “delicate and awful nature,”[130] the Court should “never resort to that authority, but in a clear and urgent case.”[131] If ever there is doubt -- and clearly there is, as manifested herein by a sharply divided Court -- “the expressed will of the legislature should be sustained.”[132]
Indeed, this Court is of the unanimous opinion that the assailed provision was at the outset constitutional; however, with recent amendments to related laws,[133] the majority now feels that said provision could no longer pass constitutional muster. To nail my colors to the mast, such proclivity to declare it immediately unconstitutional not only imprudently creeps into the legislative sphere, but also sorely clings to the strands of obscurantism. Future changes in both legislation and its executive implementation should certainly not be the benchmark for a preemptive declaration of unconstitutionality, especially when the said provision is not even constitutionally infirm to begin with.
Moreover, the congressional enactment into law of pending bills[134] on the compensation of BSP employees -- or even those related thereto -- will certainly affect the assailed provision. This Court should bide its time, for it has neither the authority nor the competence to contemplate laws, much less to create or amend them.
Given the current status of these pending bills, the arguments raised by petitioner against the assailed provision become all the more tenuous and amorphous. I feel we should leave that provision untouched, and instead just accord proper courtesy to our legislators to determine at the proper time and in the manner they deem best the appropriate content of any modifications to it. Besides, there is an omnipresent presumption of constitutionality in every legislative enactment.[135] No confutation of the proviso was ever shown before; none should be considered now.
Congress Willing
to Perform Duty
Far from being remiss in its duty, Congress is in fact presently deliberating upon HB 00123, which precisely seeks to amend RA 7653 by, inter alia, exempting from the SSL[136] all positions in the BSP.[137] Accordingly, this Court should not preempt Congress, especially when the latter has already shown its willingness and ability to perform its constitutional duty.[138] After all, petitioner has not proven any extreme urgency for this Court to shove Congress aside in terms of providing the proper solution. Lawmaking is not a pool this Court should wade into.
The Monetary Board has enough leeway to devise its own human resource management system, subject to the standards of professionalism and excellence that are in accordance with sound principles of management.[139] This system must also be in close conformity to the principles provided for, as well as with the rates prescribed, under RA 6758.
More specifically, there should be “equal pay for substantially equal work” and any differences in pay should be based “upon substantive differences in duties and responsibilities, and qualification requirements of the positions.”[140] In determining the basic compensation of all government personnel, due regard should be given by the said Board to the prevailing rates for comparable work in the private sector.[141] Furthermore, the reasonableness of such compensation should be in proportion to the national budget[142] and to the possible erosion in purchasing power as a result of inflation and other factors.[143] It should also abide by the Index of Occupational Services prepared by the Department of Budget and Management in accordance with the Benchmark Position Schedule and other factors prescribed thereunder.[144]
This Court has not been apprised as to how precisely the human resource management system of the BSP has been misused. In the absence of any evidence to the contrary, it is therefore presumed that the law has been obeyed,[145] and that official duty has been regularly performed[146] in implementing the said law. Where additional implementing rules would still be necessary to put the assailed provision into continued effect, any “attack on their constitutionality would be premature.”[147]
Surely, it would be wise “not to anticipate the serious constitutional law problems that would arise under situations where only a tentative judgment is dictated by prudence.”[148] Attempts “at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.”[149] A judicial determination is fallow when inspired by purely cerebral casuistry or emotional puffery, especially during rowelling times.
No Denial of Equal Protection
Even if the matter of urgency is set aside for the nonce, and the Court exercises its power of judicial review[150] over acts of the legislature,[151] I respectfully submit that the Petition should still be dismissed because the assailed provision’s continued operation will not result in a denial of equal protection.
Neither the passage of RA 7653 nor its implementation has been “committed with grave abuse of discretion amounting to lack or excess of jurisdiction.”[152] Every statute is intended by the legislature to operate “no further than may be necessary to effectuate”[153] its specific purpose. In the absence of a clear finding as to its arbitrary, whimsical or capricious application, the assailed provision cannot be struck down as violative of the fundamental law.
Moreover, “[u]nder the ‘enrolled bill doctrine,’[154] the signing of a bill by the Speaker of the House and the Senate President and the certification of the [s]ecretaries of both Houses of Congress that it was passed, are conclusive”[155] “not only of its provisions but also of its due enactment.”[156] It is therefore futile to welter in the thought that the original and amended versions of the corresponding bill have no reference to the proviso in question.[157] Floor deliberations are either expansive or restrictive. Bills filed cannot be expected to remain static; they transmute in form and substance. Whatever doubts there may be as to the validity of any provision therein must necessarily be resolved in its favor.
Brief Background of the
Equal Protection Clause
Despite the egalitarian commitment in the Declaration of Independence that “all men are created equal,” the framers of the original Constitution of the United States omitted any constitutional rule of equal protection. Not until 1868, when the Fourteenth Amendment thereto was ratified by the legislatures of the several states of the Union,[158] did the concept of equal protection have a constitutional basis;[159] and not until the modern era did the United States Supreme Court give it enduring constitutional significance.
From its inception, therefore, the equal protection clause in “the broad and benign provisions of the Fourteenth Amendment”[160] already sought “to place all persons similarly situated upon a plane of equality and to render it impossible for any class to obtain preferred treatment.”[161] Its original understanding was the proscription only of certain discriminatory acts based on race,[162] although its proper construction, when called to the attention of the US Supreme Court in the Slaughter-House Cases, first involved exclusive privileges.[163] Eventually, other disfavored bases of governmental action were identified. Labeled as morally irrelevant traits, gender, illegitimacy and alienage were included in this list.
Today, this clause is “the single most important concept x x x for the protection of individual rights.”[164] It does not, however, create substantive rights.[165] Its guaranty is merely “a pledge of the protection of equal laws.”[166] Its “promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”[167]
As mirrored in our Constitution,[168] this clause enjoys the interpretation given by its American framers[169] and magistrates. In fact, a century ago, this Court already enunciated that “the mere act of cession of the Philippines to the United States did not extend the [US] Constitution here, except such parts as fall within the general principles of fundamental limitations in favor of personal rights formulated in the [US] Constitution and its amendments, and which exist rather by inference and the general spirit of the [US] Constitution, and except those express provisions of the [US] Constitution which prohibit Congress from passing laws in their contravention under any circumstances x x x.”[170] Being one such limitation in favor of personal rights enshrined in the Fourteenth Amendment, equal protection is thus deemed extended to our jurisdiction.
Notably, Justice Malcolm himself said that the constitutional law of Spain, then in effect, was “entirely abrogated by the change of sovereignty.”[171] As a result, it was the constitutional law of the United States that was transposed to our fledgling political and legal system. To be precise, the principal organic acts of the Philippines included President McKinley’s Instructions to the Second Philippine Commission of April 7, 1900, to which this Court recognized the United States Constitution as a limitation[172] upon the powers of the military governor then in charge of the Philippine Islands.[173]
In a catena of constitutional cases decided after the change in sovereignty, this Court consistently held that the equal protection clause requires all persons or things similarly situated to “be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects x x x should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.”[174]
Being a constitutional limitation first recognized[175] in Rubi[176] -- citing Yick Wo[177] -- as one “derived from the Fourteenth Amendment to the United States Constitution,”[178] this clause prescribes certain requirements for validity: the challenged statute must be applicable to all members of a class, reasonable, and enforced by the regular methods of procedure prescribed, rather than by purely arbitrary means.[179] Its reasonableness must meet the requirements enumerated in Vera[180] and later summarized in Cayat.[181]
Three Tests
Passed by Assailed Provision
I respectfully submit that the assailed provision passes the three-tiered standard of review for equal protection that has been developed by the courts through all these years.
The Rational Basis Test
Under the first tier or the rational relationship or rational basis test, courts will uphold a classification if it bears a rational relationship to an accepted governmental end.[182] In other words, it must be “rationally related to a legitimate state interest.”[183] To be reasonable, such classification must be (1) based on substantial distinction that makes for real differences; (2) germane to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all members of the same class.[184]
Murphy states that when a governmental classification is attacked on equal protection grounds, such classification is in most instances reviewed under the standard rational basis test.[185] Accordingly, courts will not overturn that classification, unless the varying treatments of different groups are so unrelated to the achievement of any legitimate purpose that the courts can only conclude that the governmental actions are irrational.[186] A classification must “be reasonable, not arbitrary, and x x x rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”[187]
All these conditions are met in the present case. The retention of the best and the brightest officials in an independent central monetary authority[188] is a valid governmental objective that can be reasonably met by a corresponding exemption from a salary standardization scheme that is based on graduated salary levels. The legislature in fact enjoys a wide berth in continually classifying whenever it enacts a law,[189] provided that no persons similarly situated within a given class are treated differently. To contend otherwise is to be presumptuous about the legislative intent or lack of it.
Whether it would have been a better policy to make a more comprehensive classification “is not our province to decide.”[190] The absence of legislative facts supporting a classification chosen has no significance in the rational basis test.[191] In fact, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”[192] Requiring Congress to justify its efforts may even “lead it to refrain from acting at all.”[193] In addition, Murphy holds that the statutory classification “enjoys a strong presumption of constitutionality, and a reasonable doubt as to its constitutionality is sufficient to sustain it.”[194]
Respectfully, therefore, I again differ from the ponencia’s contention that the amendments of the charters of the seven GFIs from 1995 to 2004[195] have already “unconstitutionalized” the continued implementation of the BSP proviso. Be it remembered that the first six GFIs mentioned by Mr. Justice Puno -- namely the LBP, SSS, SBGFC, GSIS, DBP and HGC -- do not stand in the same class and category as the BSP.[196]
While the BSP, as mentioned earlier, is a regulatory agency performing governmental functions, the six aforementioned GFIs perform proprietary functions that chiefly compete with private banks and other non-bank financial institutions. Thus, the so-called concept of relative constitutionality again finds no application. Under the rational relationship test, there can be no unequal protection of the law between employees of the BSP and those of the GFIs. Further, the equal protection clause “guarantees equality, not identity of rights.”[197] A law remains valid even if it is limited “in the object to which it is directed.”[198]
“Defining the class of persons subject to a regulatory requirement x x x inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.”[199] In fact, as long as “the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern.”[200] “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”[201]
On the other hand, the Philippine Deposit Insurance Corporation (PDIC) is also a government regulatory agency almost on the same level of importance as the BSP. However, its charter was only amended very recently --to be more precise, on July 27, 2004.[202] Consequently, it would be most unfair to implicitly accuse Congress of inaction, discrimination and unequal treatment. Comity with and courtesy to a coequal branch dictate that our lawmakers be given sufficient time and leeway to address the alleged problem of differing pay scales. “Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.”[203] Besides, it is a cardinal rule that courts first ascertain whether construction of a statute is fairly possible by which any constitutional question therein may be avoided.[204]
To explain further, while the possible changes contemplated by Congress in HB 00123 are similar, if not identical, to those found in the amended charters of the seven other GFIs already mentioned, the governmental objectives as explicitly stated in the explanatory note remain -- to ascertain BSP’s effectiveness and to strengthen its supervisory capability in promoting a more stable banking system. This fact merely confirms that the present classification and distinction under the assailed provision still bear a rational relationship to the same legitimate governmental objectives and should, therefore, not be invalidated.
The validity of a law is to be determined not by its effects on a particular case or by an incidental result arising therefrom, but by the purpose and efficacy of the law in accomplishing that effect or result.[205] This point confirms my earlier position that the enactment of a law is not the same as its operation. Unlike Vera in which the Court invalidated the law on probation because of the unequal effect in the operation of such law,[206] the assailed provision in the present case suffers from no such invidious discrimination. It very well achieves its purpose, and it applies equally to all government employees within the BSP. Furthermore, the application of this provision is not made subject to any discretion, uneven appropriation of funds, or time limitation. Consequently, such a law neither denies equal protection nor permits of such denial.
The Strict Scrutiny Test
Under the second tier or the strict scrutiny test, the Court will require the government to show a compelling or overriding end to justify (1) the limitation on fundamental rights or (2) the implication of suspect classes.[207] Where a statutory classification impinges upon a fundamental right or burdens a suspect class, such classification is subjected to strict scrutiny.[208] It will be upheld only if it is shown to be “suitably tailored to serve a compelling state interest.”[209]
Therefore, all legal restrictions that curtail the civil rights of a suspect class, like a single racial or ethnic group, are immediately suspect. “That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.”[210] Pressing public necessity, for instance, may justify the existence of those restrictions, but antagonism toward such suspect classes never can.
To date, no American case -- federal or state -- has yet been decided involving equal pay schemes as applied either to government employees vis-à-vis private ones, or within the governmental ranks. Salary grade or class of position is not a fundamental right like marriage,[211] procreation,[212] voting,[213] speech[214] and interstate travel.[215] American courts have in fact even refused to declare government employment a fundamental right.[215]
As to suspect classes, non-exempt government employees (those with salary grades below 20) are not a group “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness, as to command extraordinary protection from the majoritarian political process.”[217] They are a group so much unlike race,[218] nationality,[219] alienage[220] or denominational preference[221] -- factors that are “seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy x x x.”[222]
Again, with due respect, the ponencia’s[223] reference to Yick Wo,[224] therefore, is unbefitting. Indeed that case held that “[t]hough the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the [C]onstitution.”[225] The facts in Yick Wo clearly point out that the questioned ordinances therein -- regulating the use of wooden buildings in the business of keeping and conducting laundries --operated in hostility to the race and nationality to which plaintiffs belonged, being aliens and subjects of the Emperor of China.[226] To a board of supervisors was given the arbitrary power to withhold permits to carry on a harmless and useful occupation on which the plaintiffs depended for livelihood.[227]
In contrast, no such arbitrariness is found in the case at bar. Neither is there any allegation of abuse of discretion in the implementation of a human resource development program. There is also no allegation of hostility shown toward employees receiving salaries below grade 20.
In fact, for purposes of equal protection analysis, financial need alone does not identify a suspect class.[228] And even if it were to consider government pay to be akin to wealth, it has already been held that “where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.”[229] After all, a law does not become invalid “because of simple inequality,”[230] financial or otherwise.
Since employment in the government is not a fundamental right and government employees below salary grade 20 are not a suspect class, the government is not required to present a compelling objective to justify a possible infringement under the strict scrutiny test. The assailed provision thus cannot be invalidated via the strict scrutiny gauntlet. “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”[231]
The Intensified Means Test
Under the third tier or the intensified means test, the Court should accept the legislative end, but should closely scrutinize its relationship to the classification made.[232] There exist classifications that are subjected to a higher or intermediate degree of scrutiny than the deferential or traditional rational basis test. These classifications, however, have not been deemed to involve suspect classes or fundamental rights; thus, they have not been subjected to the strict scrutiny test. In other words, such classifications must be “substantially related to a sufficiently important governmental interest.”[233] Examples of these so-called “quasi-suspect” classifications are those based on gender,[234] legitimacy under certain circumstances,[235] legal residency with regard to availment of free public education, civil service employment preference for armed forces veterans who are state residents upon entry to military service, and the right to practice for compensation the profession for which certain persons have been qualified and licensed.[236]
Non-exempt government employees may be a sensitive but not a suspect class, and their employment status may be important although not fundamental. Yet, the enactment of the assailed provision is a reasonable means by which the State seeks to advance its interest.[237] Since such provision sufficiently serves important governmental interests and is substantially related to the achievement thereof, then, again it stands.
“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’”[238] “The very idea of classification is that of inequality, so that x x x the fact of inequality in no manner determines the matter of constitutionality.”[239]
A statute, therefore, “is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.”[240] Congress does not have to “strike at all evils at the same time.”[241] Quoting Justice Holmes, a law “aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which [the law] might have been applied equally well, so far as the court can see. That is for the legislature to judge[,] unless the case is very clear.”[242] This Court is without power to disturb a legislative judgment, unless “there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.”[243] To find fault with a legislative policy “is not to establish the invalidity of the law based upon it.”[244]
Epilogue
After that rather lengthy discourse, permit me to summarize. I respectfully submit that the assailed provision is not unconstitutional either on its face or as applied.
First, the theory of relative constitutionality is inapplicable to and not in pari materia with the present facts. It pertains only to the circumstances that an assailed law specifically addressed upon its passage, and not to extraneous circumstances.
The American cases cited in the ponencia prove my point. The laws therein that have been declared invalid because of “altered circumstances” or “changed conditions” are of the emergency type passed in the exercise of the State’s police power, unlike the law involved in the present case. Moreover, our ruling in Rutter does not apply, because the assailed provision in the present case is not a remedial measure subject to a period within which a right of action or a remedy is suspended. Since the reason for the passage of the law still continues, the law itself must continue.
Second, this Court should respect Congress as a coequal branch of government. No urgency has been shown as to require the peremptory striking down of the assailed provision, and no injuries have been demonstrated to have been sustained as to require immediate action on the judiciary’s part.
The legislative classification of BSP employees into exempt and non-exempt, based on the salary grade of their positions, and their further distinction (albeit perhaps not by design) from the employees of various GFIs are nevertheless valid and reasonable in achieving the standards of professionalism and excellence within the BSP -- standards that are in accordance with sound principles of management and the other principles provided for under RA 6758. They are employees not subjected to the same levels of difficulty, responsibility, and qualification requirements. Besides, the BSP performs primarily governmental or regulatory functions, while the GFIs cited in the ponencia execute purely proprietary ones.
Congress is in fact presently deliberating upon possible amendments to the assailed provision. Since there is no question that it validly exercised its power and did not gravely abuse its discretion when it enacted the law, its will must be sustained. Under the doctrine of separation of powers with concomitant respect for coequal and coordinate branches of government, this Court has neither the authority nor the competence to create or amend laws.
Third, the assailed provision passes the three-tiered standard of review for equal protection. It is both a social and an economic measure rationally related to a governmental end that is not prohibited. Since salary grade, class of position, and government employment are not fundamental or constitutional rights, and non-exempt government employees or their financial need are not suspect classes, the government is not at all required to show a compelling state interest to justify the classification made. The provision is also substantially related to the achievement of sufficiently important governmental objectives. A law does not become invalid because of simple inequality, or because it did not strike at all evils at the same time.
At bottom, whichever constitutional test is used, the assailed provision is not unconstitutional. Moreover, a thorough scrutiny of the Petition reveals that the issue of equal protection has been raised only in regard to the unconstitutionality of the proviso at its inception,[245] and not by reason of the alleged “changed conditions” propounded by the ponencia. With greater reason then that the Petition should be denied.
In our jurisdiction, relative constitutionality is a rarely utilized theory having radical consequences; hence, I believe it should not be imposed by the Court unilaterally. Even in the US, it applies only when there is a change in factual circumstances covered by the law, not when there is an enactment of another law pertaining to subjects not directly covered by the assailed law. Whether factual conditions have so changed as to call for a partial or even a total abrogation of the law is a matter that rests primarily within the constitutional prerogative of Congress to determine.[246] To justify a judicial nullification, the constitutional breach of a legal provision must be very clear and unequivocal, not doubtful or argumentative.[247]
In short, this Court can go no further than to inquire whether Congress had the power to enact a law; it cannot delve into the wisdom of policies it adopts or into the adequacy under existing conditions of measures it enacts.[248] The equal protection clause is not a license for the courts “to judge the wisdom, fairness, or logic of legislative choices.”[249] Since relative constitutionality was not discussed by the parties in any of their pleadings, fundamental fairness and evenhandedness still dictate that Congress be heard on this concept before the Court imposes it in a definitive ruling.
Just a final observation at this juncture. It seems to me that when RA 7653 was enacted, the real focus of the second paragraph of Section 15(c) of Chapter 1 of Article II of the statute was to enable the officers and executives of the BSP to enjoy a wider scope of exemption from the Compensation Classification System than that stated in the last part of Section 9 of the Salary Standardization Law. As can be gleaned from the deliberations on the bill, the mention of BSP employees with salary grade 19 and below seems to have been purely incidental in the process of defining who were part of the executive and officer corps. It appears that the “classification” (if we can call it that) of the rank and filers with salary grade 19 and below, via the challenged proviso, came about not by design. And it was only after the later pieces of legislation were promulgated affecting the charters of the LBP, GSIS, SSS, DBP, etc. that the proviso came to be considered as “discriminatory.”
In these trying times, I cannot but sympathize with the BSP rank and filers on account of the situation they have found themselves in, and I do not mean to begrudge them the opportunity to receive a higher compensation package than what they are receiving now. However, they are operating on the simplistic assumption that, being rank and file employees employed in a GFI, they are automatically entitled to the same benefits, privileges, increases and the like enjoyed by any other rank and file employee of a GFI, seeing as they are all working for one and the same government anyway.
It could also have something to do with the fact that Central Bank employees were quite well paid in the past. They may have overlooked the fact that the different GFIs are regulated by their respective charters, and are mandated to perform different functions (governmental or proprietary). Consequently, their requirements and priorities are likewise different, and differ in importance in the overall scheme of things, thus necessitating some degree of differentiation and calibration in respect of resource allocation, budgets and appropriations, and the like.
The long and short of it is that there can be no such thing as an automatic entitlement to increases in compensation, benefits and so forth, whether we consider the BSP rank and filers similarly situated along with other rank and filers of GFIs, or as being in a class by themselves. This is because the BSP is, strictly speaking, not a GFI but rather, the regulatory agency of GFIs.
The foregoing becomes even more starkly clear when mention is again made of the fiscal/budget deficit hobbling the national government, which has, not surprisingly, triggered waves of belt tightening measures throughout every part of the bureaucracy. This particular scenario puts Congress somewhat at odds with itself. On the one hand, it is studying HB 00123 with the end in view of precisely addressing the principal concern of the petitioner. On the other hand, it is also looking into how the various exemptions from the Salary Standardization Law can be rationalized or done away with, in the hope of ultimately reducing the gargantuan deficit.
Thankfully, the Court is not the one having to grapple with such a conundrum. It behooves us to give Congress, in the exercise of its constitutional mandate and prerogative, as much elbow room and breathing space as it needs in order to tackle and perhaps vanquish the many headed monster.
And while we all watch from the sidelines, we can all console ourselves and one another that after all, whether we find ourselves classified-out as BSP rank and filers, or officers and executives, or employees and members of the judiciary, we are -- all of us -- in the same boat, for we have all chosen to be in “public service,” as the term is correctly understood. And what is public service if it does not entail a certain amount of personal sacrifice on the part of each one of us, all for the greater good of our society and country. We each make our respective sacrifices, sharing in the burden today, in the hope of a better tomorrow for our children and loved ones, and our society as a whole. It makes us strong. For this we can be thankful as well.
WHEREFORE, I vote to DISMISS the Petition. I maintain that the last proviso of the second paragraph of Section 15(c) of Chapter 1 of Article II of Republic Act No. 7653 is constitutional. Congress should be given adequate opportunity to enact the appropriate legislation that will address the issue raised by petitioner and clear the proviso of any possible or perceived infringement of the equal protection clause. At the very least, Congress and herein respondents should be given notice and opportunity to respond to the possible application of the theory of relative constitutionality before it is, if at all, imposed by this Court.
[1] See ponencia footnote nos. 24, 25, 26, 27 and 28.
[2] Medill v. State, 477 NW 2d 703, November 22, 1991.
[3] Id., p. 704.
[4] Ibid.
[5] Id., pp. 706-707.
[6] Id., pp. 705-708.
[7] Id., p. 708.
[8] Id., p. 709, per Yetka, J.
[9] These rulings were on fraternal benefit and homestead exemptions. Id., p. 708.
[10] Ibid.
[11] Ibid.
[12] In re Cook, 138 BR 943, April 15, 1992.
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