Congress, Supreme Court should read this

Under the 1935 and the 1973 Constitutions, the rules of pleading, practice and procedure in the courts of law promulgated by the Supreme Court may be repealed, altered or supplemented by the legislature. No such provision can be found in the 1987 Constitution.

Does the silence of the 1987 Charter in this particular regard mean that Congress may no longer repeal, alter or supplement rules of pleading, practice and procedure in the courts?

The late Joaquin Bernas SJ, one of the drafters of the 1987 Constitution and a recognized expert in Constitutional Law, maintained that Congress still retains the power to repeal, alter or supplement those rules of pleading, practice and procedure.

In his latest treatise on the

1987 Constitution, Bernas cited the deliberations of the 1986 Constitutional Commission on this subject. Bernas asserted that it was the intention of the Commission to retain the power of Congress to repeal, alter or supplement those rules of pleading, practice and procedure, but that the Commission chose not to explicitly say so in the text of the charter.

According to Bernas, the matter was debated and that “…in the end, Commissioner (Felicitas) Aquino struck a compromise which omitted any mention of the power of the legislature, but with the understanding that the silence of the text would nonetheless be recognition of the inherent power of the (Supreme) Court to make rules and of the equally inherent power of the legislature to legislate on matters of court procedure. This, she argued, would be consonant with the principle of checks and balances. That is how the matter was left.”

Take note that Bernas emphasized that the power of the legislature to legislate on matters of court procedure is as inherent as the power of the Supreme Court to make rules of pleading, practice and procedure in courts. As every law student knows, an inherent power need not be stated in writing.

Precisely because the Commission observed that the power to create rules governing court pleading, practice and procedure is inherent in Congress (as it is in the Supreme Court), the Commission found it unnecessary to explicitly mention that same rulemaking power, inherent in Congress, in the text of the 1987 Constitution.

Bernas’ view finds support in Section 10 of the transitory provisions (Article XVIII) of the 1987 Constitution:

“...The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with this Constitution shall remain operative unless amended or repealed by the Supreme Court or the Congress.” (Emphasis supplied.)

It can be seen from Section 10 above that the 1987 Constitution never intended to take away from Congress its power to legislate on matters of pleading, practice and procedure in the courts.

Bernas noted that in an obiter dictum (a non-doctrinal statement) in the decision of the Supreme Court en banc in Echegaray vs Secretary of Justice (GR 132601, 19 January 1999), Justice Reynato Puno said, without any explanation, that Congress no longer has the power to amend the rules of procedure promulgated by the Supreme Court.

Equally surprising is the recent decision of the first division of the Supreme Court in People vs Talaue (GR 248652, 12 January 2021) where Chief Justice Diosdado Peralta echoed Justice Puno’s obiter dictum to the effect that the Constitution bestows on the Supreme Court “the exclusive power to promulgate rules

concerning pleading, practice and procedure in all courts.”

It’s not certain if Commissioner Bernas was aware of the decision in Talaue. He passed away last 6 March 2021 at the age of 88 years.

With all due respect to the Supreme Court, it appears that the pronouncements in Echegaray and in Talaue are constitutionally infirm in so far as they state that the 1987 Constitution has taken away from Congress its inherent power to legislate on matters concerning pleading, practice and procedure in courts.

Moreover, and as the record of the Constitutional Commission indicates, to take away that power from Congress is to dilute the principle of checks and balances underlying the country’s constitutional system.

This constitutional controversy ought to be resolved by both Congress and the Supreme Court.

“The late Joaquin Bernas… maintained that Congress still retains the power to repeal, alter or supplement those rules of pleading, practice and procedure.

“To take away that power from Congress is to dilute the principle of checks and balances underlying the country’s constitutional system.