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

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.

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.[216]

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.

[13] Id., p. 946, per Kressel, CJ.

[14] These are damages accruing at the time a petition is filed and include existing medical costs; actual lost income; existing non-medical costs and expenses; and property lost, damaged or destroyed in the incident that caused the injury.  Id., p. 945.

[15] These damages include temporary or permanent physical and mental loss or impairment; pain or suffering; and future medical costs.  Id., pp. 945-946.

[16] As to general damages, however, reliance was made upon Medill.  Id., p. 946.

[17] In fact, in Medill it was held that because special damages reimbursed an individual for expenses that would ordinarily be discharged in a bankruptcy proceeding, their exemption would be a windfall to the debtor.  Medill v. State; supra, p. 706.

[18] Nashville, Chattanooga, & St. Louis Railway v. Walters, 294 US 405, 415, 79 L.ed. 949, 955, March 4, 1935.

[19] Id., p. 413.

[20] Id., p. 434.

[21] Id., p. 433.

[22] Id., pp. 415-416.

[23] Id., pp. 428-429.

[24] Id., p. 429.

[25] Atlantic Coast Line R. Co. v. Ivey, 5 So.2d, 244, 247, January 8, 1942.

[26] Id., pp. 245-246.

[27] Id., p. 247.

[28] Id., p. 246.

[29] Ibid.

[30] Id., p. 247.

[31] Ibid.

[32] Ibid.

[33] Louisville & Nashville Railroad Co. v. Faulkner, 307 SW 2d. 196, November 15, 1957.

[34] Id., pp. 196-197.

[35] Id., p. 197.

[36] Id., p. 198.

[37] Id., pp. 197-198.

[38] Id., p. 197.

[39] Vernon Park Realty, Inc. v. City of Mount Vernon, 121 N.E.2d 517, 307 NY 493, July 14, 1954.

[40] Id., p. 518.

[41] Id., pp. 520-521.

[42] Id., p. 519.

[43] Ibid., per Dye, J.

[44] Ibid.

[45] Id., pp. 518-519.

[46] Murphy v. Edmonds, 601 A.2d 102, 325 Md. 342, February 7, 1992.

[47] Id., p. 104.

[48] Id., pp. 105-106, 116 & 119.

[49] This amendment to the U.S. Constitution provides that “[n]o State shall x x x deny to any person within its jurisdiction the equal protection of the laws.”

[50] Murphy v. Edmonds; supra, p. 107.

[51] Id., pp. 105 & 112.

[52] Id., pp. 105-106.

[53] Id., p. 108.

[54] Id., pp. 111 & 114.

[55] Id., p. 115, per Eldridge, J.

[56] Ibid.

[57] In re Cook; supra, p. 945 (citing Medill v. State; supra, p. 708).

[58] Medill v. State, supra, p. 708.

[59] This refers to In re Bailey decided in 1988 in the state of Minnesota.  Id., pp. 705-706 and 708.

[60] In re Cook; supra, pp. 944-945.

[61] Cruz, Constitutional Law (2003 ed.), p. 37.

[62] Id., p. 49.

[63] Nashville, Chattanooga, & St. Louis Railway v. Walters; supra, p. 415.

[64] Agpalo, Statutory Construction (2^nd ed., 1990), p. 27.

[65] Id., p. 78.

[66] “In interpreting and applying the bulk of the written laws of this jurisdiction, and in rendering its decisions in cases not covered by the letter of the written law, this court relies upon the theories and precedents of Anglo-American cases, subject to the limited exception of those instances where the remnants of the Spanish written law present well-defined civil law theories and of the few cases where such precedents are inconsistent with local customs and institutions.”  In re Shoop, 41 Phil. 213, 254-255, November 29, 1920, per Malcolm, J.

[67] “Stare decisis” means one should follow past precedents and should not disturb what has been settled.  See Agpalo, supra, p. 92.

[68] To be controlling, the ruling must be categorically rendered by our Supreme Court on an issue expressly raised by the parties.  Ibid.

[69] Article 8 of the Civil Code.

[70] Murphy v. Edmonds; supra, p. 112, per Eldridge, J.

[71] In re Shoop; supra, pp. 220-221, per Malcolm, J.

While it may be argued that we are not a common law country, our peculiar national legal system has blended both civil and common law principles.  Gamboa, An Introduction to Philippine Law, 7^th ed., 1969 p. 59.

[72] Salas v. Jarencio, 150-B Phil. 670, 690, August 30, 1972.

[73] Agpalo, supra, p. 20.

[74] In re Cook; supra, p. 944.

[75] Medill v. State; supra, p. 704.

[76] Rutter v. Esteban, 93 Phil. 68, May 18, 1953.

[77] Rutter v. Esteban; supra, p. 70.

[78] Id., p. 71.

[79] Id., p. 70.

[80] Approved by Congress on July 26, 1948.

[81] Rutter v. Esteban; supra, p. 71.

[82] Id., p. 83.

Moreover, Executive Order Nos. 25 and 32, issued on November 18, 1944 and March 10, 1945, were respectively voided.  §1 of RA 342, 45 OG No. 4, p. 1680.

[83] §2 of RA 342, 45 OG No. 4, p. 1681.

[84] Rutter v. Esteban; supra, pp. 81-82.

[85] Id., p. 77.

[86] Ibid.

[87] “Conventions and laws are x x x needed to join rights to duties and refer justice to its object.  x x x  In the state of society all rights are fixed by law x x x.”  Rousseau, The Social Contract, 1762, translated by G.D.H. Cole.  http://www.constitution.org/jjr /socon.htm (Last visited September 16, 2004; 12:04:50 p.m. PST).

[88] Atlantic Coast Line R. Co. v. Ivey; supra, per Buford, J. (citing Nashville, Chattanooga, & St. Louis Railway v. Walters; supra, per Brandeis, J.)

[89] Cruz, International Law (1990), p. 1; and Salonga and Yap, Public International Law (1992), p. 1.

International legal subjects -- in the modern sense of international law as a process rather than as a set of rules -- refer to states, international organizations, insurgents, peoples represented by liberation movements, and individuals by virtue of the doctrine of human rights and its implicit acceptance of their right to call upon states to account before international bodies.  Defensor-Santiago, International Law with Philippine Cases and Materials and ASEAN Instruments (1999), pp. 15-24.

[90] Peralta v. COMELEC, 82 SCRA 30, 77, March 11, 1978, per concurring and dissenting opinion of Fernando, J. (later CJ.).

“Indeed, whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the serious conflict of opinions does not suffice to bring them within the range of judicial cognizance.”  Fariñas v. The Executive Secretary, GR No. 147387, December 10, 2003, per Callejo Sr., J.

[91] Id., p. 78, per concurring and dissenting opinion of Fernando, J. (later CJ; citing Manila Electric Co. v. Pasay Transportation Co., Inc., 57 Phil. 600, 605, November 25, 1932, per Malcolm, J.).

[92] Ibid., per concurring and dissenting opinion of Fernando, J. (later CJ; citing ibid., per Malcolm, J.).

[93] See ponencia.

[94] Cruz, Constitutional Law, supra, pp. 46-47.

“For protection against abuses by legislatures the people must resort to the polls, not to the courts.” Munn v. Illinois; supra, 134, per Waite, CJ.

[95] City of Cleburne, Texas v. Cleburne Living Center, 473 US 432, 440, 105 S.Ct. 3249, 3254, July 1, 1985, per White, J.

[96] Federal Communications Commission v. Beach Communications, Inc., 508 US 307, 314, 113 S.Ct. 2096, 2101, June 1, 1993 (citing Vance v. Bradley, 440 US 93, 97, 99 S.Ct. 939, 942-943, February 22, 1979).

[97] Peik v. Chicago and North-Western Railway Co.; supra, p. 178, per Waite, CJ.

[98] Cruz, Constitutional Law, supra, p. 47.

[99] Romer v. Evans, 517 US 620, 632, 116 S.Ct. 1620, 1627, May 20, 1996, per Kennedy, J.

[100] Cruz, Constitutional Law, supra, p. 47.

[101] Calder v. Bull; supra, p. 399; p. 8, per seriatim opinion of Iredell, J. (citing 1 Bl. Com. 91).

[102] Rousseau, supra.

[103] In fact, under §1 of pending House Bill No. 2295, it is proposed that “[a]ll officials and employees of government owned or controlled corporations and government financial institutions which, by virtue of their Charters, are exempted from the Compensation and Position Classification System [or the SSL] providing for the salary standardization of government employees shall receive compensation of no more than twice the salaries of equivalent ranks and positions in other government agencies.”  This proves that Congress can, inter alia, put a statutory limit to the salaries currently being received by such officials and employees.

[104] §18 of Art. XVIII of the 1987 Constitution.

[105] Federal Communications Commission v. Beach Communications, Inc.; supra, p. 316; supra, p. 2102 (citing Williamson v. Lee Optical of Oklahoma, Inc., 348 US 483, 489, 75 S.Ct. 461, 465, March 28, 1955).

[106] City of Cleburne, Texas v. Cleburne Living Center; supra, p. 445; supra, p. 3257, per White, J.

[107] Federal Communications Commission v. Beach Communications, Inc.; supra, pp. 313-314; supra, p. 2101, per Thomas, J. (citing United States Railroad Retirement Board v. Fritz, 449 US 166, 179, 101 S.Ct. 453, 461, December 9, 1980, per Rehnquist, J.).

[108] This law was approved on June 14, 1993 and published on August 9, 1993.  89 OG 32, p. 4425.  See also Villegas, Global Finance Capital and the Philippine Financial System (2000), p. 48.

[109] These GFIs are the LBP and DBP mentioned earlier, as well as the Social Security System (SSS); the Small Business Guarantee and Finance Corporation (SBGFC); the Government Service Insurance System (GSIS); the Home Guaranty Corporation (HGC, formerly the Home Insurance and Guaranty Corporation [HIGC]); and the Philippine Deposit Insurance Corporation (PDIC).  See ponencia.

[110] See ponencia.

[111] The last proviso of the 2^nd paragraph of §15(c) of RA 7653, copied verbatim including italics, provides:

“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.”

[112] Petition, p. 13; rollo, p. 15.

[113] A “salary grade” under §3.s. of Pres. Decree No. (PD) 985 refers to “the numerical place on the Salary x x x Schedule representing multiple steps or rates x x x assigned to a class,” while a “position” under §3.m. means the “set of duties and responsibilities, assigned or delegated by competent authority and performed by an individual either on full-time or part-time basis.”

[114] Petition, p. 3; rollo, p. 5.

[115] Id., pp. 10 & 12.

[116] Id., pp. 4-5 & 6-7.

[117] §5(a) of RA 6758.

[118] Ibid.

[119] §5(b) of RA 6758.

[120] A “class of position” is “the basic unit of the Position Classification System” under §3.c. of PD 985.  It “consists of all those positions in the system which are sufficiently similar as to (1) kind or subject matter of work, (2) level of difficulty and responsibility, and (3) the qualification requirements of the work, to warrant similar treatment in personnel and pay administration.”

A “grade,” on the other hand, under §3.h. thereof, “includes all classes of positions which, although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibility and level of qualification requirements of the work to warrant the inclusion of such classes of positions within one range of basic compensation.”

[121] Petition, p. 5; rollo, p. 7.

[122] The BSP, on the one hand, has authority and responsibility over the Philippine financial system.  Aside from credit control, monopoly of currency issues, clearing functions, and custody and management of foreign exchange reserves, it also regulates and supervises the entire banking system.  Workers Desk, IBON Databank and Research Center, IBON Foundation, Inc., The Philippine Banking Sector (2003), pp. 13-14.

The cited GFIs, on the other, perform under special charters purely banking, finance, or related insurance functions that may include safekeeping, accepting deposits and drafts, issuing letters of credit, discounting and negotiating notes and other evidences of indebtedness, lending money against real or personal property, investing in equities of allied undertakings, insuring bank deposits of insolvent banks, and extending social security protection to workers or employees and their beneficiaries.  Workers Desk, IBON Databank and Research Center, IBON Foundation, Inc., The Philippine Banking Sector; supra, pp. 16-17.  See also Villegas, Global Finance Capital and the Philippine Financial System; supra, p. 27; §§2 and 4 of RA 8282, otherwise known as the “Social Security Law of 1997,” which amended RA 1161; and RA 8291, otherwise known as “The Government Service Insurance System Act of 1997,” which amended PD No. 1146.

[123] For a longer discourse on this point, see the Dissenting Opinion of Carpio Morales, J.

[124] Consolidated Reply, p. 10; rollo, p. 105.

[125] See Workers Desk, IBON Databank and Research Center, IBON Foundation, Inc., The Philippine Banking Sector; supra, p. 59.

[126] Petition, p. 13; rollo, p. 15.

[127] Ashwander v. Tennessee Valley Authority, 297 US 288, 346-347, 56 S.Ct. 466, 483, February 17, 1936, per Brandeis, J.

[128] Id., p. 347; ibid., per Brandeis, J.

[129] Munn v. Illinois; supra, per Waite, CJ.

[130] Calder v. Bull; supra, p. 399; p. 9, per seriatim opinion of Iredell, J.

[131] Ibid.

[132] Munn v. Illinois; supra p. 123.

[133] These amendments pertain to the charters of the Land Bank of the Philippines (LBP) and the Development Bank of the Philippines (DBP).

[134] To date, there are two pending bills in the House of Representatives that may have an impact -- direct or indirect -- on the assailed provision.  These are:

(1) HB 00123 which was filed on July 1, 2004 by Rep. Joey Sarte Salceda, entitled “An Act Amending Republic Act No. 7653, otherwise known as The New Central Bank Act,” and pending with the Committee on Banks and Financial Intermediaries since July 27, 2004; and

(2) HB 02295 which was filed on August 10, 2004 by Rep. Monico O. Puentebella, entitled “An Act Providing for the Rationalization of Salaries, Allowances and Benefits of Officials and Employees of Government Owned or Controlled Corporations and Government Financial Institutions Exempted from the Compensation and Position Classification System,” and pending first reading.

There are also other pending bills advocating for similar exemption from the Salary Standardization Law (SSL).  These are:

(1) HB 01926 which was filed on July 29, 2004 by Rep. Robert Ace S. Barbers, entitled “An Act Granting Exemption to the Public School Teachers from the Coverage of Republic Act 6758, otherwise known as the Salary Standardization Law and Authorizing the Appropriation of Funds Therefor,” and pending with the Committee on Appropriations since August 9, 2004;

(2) HB 01442 which was filed on July 14, 2004 by Rep. Hussin U. Amin, entitled “ An Act Providing for a Separate Compensation Scheme for Lawyer Positions in the Office of the Secretary of Justice, Department of Justice, thereby Exempting The Said Positions from Republic Act No. 6758, otherwise known as the Salary Standardization Law,” and pending with the Committee on Appropriations since August 3, 2004; and

(3) HB 00949 which was filed on July 1, 2004 by Rep. Judy J. Syjuco, entitled “An Act Providing for a Salary Standardization for Military and Police Personnel amending for the Purpose Republic Act No. 6758 otherwise known as the ‘Compensation and Position Classification Act of 1989’ and for other purposes,” and also pending with the Committee on Appropriations since August 28, 2004.

[135] Peralta v. COMELEC; supra, p. 79, per concurring and dissenting opinion of Fernando, J. (later CJ.).

[136] RA 6758.

[137] §2 of HB 00123 provides:

“Section 2. Section 15, paragraph (c) of the same Act is hereby amended to read as follows:

“x x x                        x x x                         x x x

“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: x x x Provided, that all position (sic) in the Bangko Sentral ng Pilipinas shall be governed by a compensation, position classification system and qualification standards approved by the Monetary Board based on 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 Bangko Sentral 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.”

[138] See “Should The Supreme Court Presume that Congress Acts Constitutionally?: The Role of the Canon of Avoidance and Reliance on Early Legislative Practice in Constitutional Interpretation.” 116 Harv. L. Rev. 1798, April 2003.

[139] The 1^st paragraph of §15(c) of RA 7653, copied verbatim including italics, provides:

“Sec. 15.  Exercise of Authority. – In the exercise of its authority, the Monetary Board shall:

“x x x                        x x x                         x x x

“(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.

“x x x                        x x x                         x x x.”

[140] §2 of RA 6758.

[141] §§2 and 3(b) of RA 6758.

[142] §3(c) of RA 6758.

[143] §3(d) of RA 6758.

[144] §9 of RA 6758.

[145] §3(ff) of Rule 131 of the Rules of Court.

[146] §3(m) of Rule 131 of the Rules of Court.

[147] Ople v. Torres, 354 Phil. 948, 1011, July 23, 1998, per dissenting opinion of Mendoza, J. (citing Garcia v. Executive Secretary, 204 SCRA 516, 522, December 2, 1991).

[148] Peralta v. COMELEC; supra, p. 96, per concurring and dissenting opinion of Fernando, J. (later CJ.).

[149] Id., p. 79, per concurring and dissenting opinion of Fernando, J. (later CJ.).

[150] §1 of Article VIII of the 1987 Constitution.  See also Angara v. The Electoral Commission, 63 Phil. 139, 158, July 15, 1936; and Marbury v. Madison; supra, p. 178, per Marshall, CJ.

[151] Arceta v. Hon. Mangrobang, GR No. 152895, p. 5, June 15, 2004, per Quisumbing, J.

[152] Francisco Jr. v. The House of Representatives, supra, p. 222, per separate opinion of Vitug, J.

[153] Fariñas v. The Executive Secretary; supra, p. 14.

[154] This was pronounced as early as 1947 in Mabanag v. Lopez Vito, 78 Phil. 1, 3, 18-19, March 5, 1947.  See Tatad v. Secretary of the Department of Energy, 346 Phil. 321, 394, November 5, 1997, per dissenting opinion of Melo, J.

[155] Fariñas v. The Executive Secretary; supra, p. 26.

[156] Tatad v. Secretary of the Department of Energy; supra, p. 394, per dissenting opinion of Melo, J.

[157] Petition, p. 6; rollo, p. 8.

[158] Article XIV was proposed by Congress and ratified pursuant to the 5^th Article of the 1787 U.S. Constitution.

[159] “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight.”  Lawrence v. Texas, 123 S.Ct. 2472, June 26, 2003, per Kennedy, J.  http://web2.westlaw. com/result/default.wl?RS=WLW4.08&VR=2.0&SV=Split&FN=_top&MT=WestlawInternational&DB=SCT&Method=TNC&Query=%22EQUAL+PROTECTION%22&RLTDB=CLID_DB122318&Rlt=CLID_QRYRLT1522318&Cnt=DOC&DocSample=False&n=1&Cxt=RL&SCxt=WL&SS=CXT&Service=Search&FCL=True&EQ=search&CFID=1&bLinkedCiteList=False&Dups=False&RP=%2fsearch%2fdefault.wl&nStartListItem=1&TF=507&TC=6. (Last visited September 13, 2004, 8:01:18 a.m. PST).

[160] Yick Wo v. Hopkins, 118 US 356, 373, 6 S.Ct. 1064, 1073, 30 L.ed. 220, 227, May 10, 1886, per Matthews, J.

[161] Louisville & Nashville Railroad Co. v. Faulkner; supra, p. 198, per Stanley, J.

[162] Defensor-Santiago, The “New” Equal Protection, 58 Phil. Law Journal 1, 3, March 1983.

[163] Plessy v. Ferguson, 163 US 537, 543, 16 S.Ct. 1138, 1140, May 18, 1896.

[164] Defensor-Santiago, The “New” Equal Protection, supra, p. 1.

[165] Vacco v. Quill, 521 US 793, 799, 117 S.Ct. 2293, 2297, June 26, 1997, per Rehnquist, CJ.

[166] Romer v. Evans; supra, pp. 633-634; supra, p. 1628, per Kennedy, J. (citing Skinner v. Oklahoma ex rel. Williamson, 316 US 535, 541, 62 S.Ct. 1110, 1113, June 1, 1942, per Douglas, J., quoting Yick Wo v. Hopkins; supra, p. 369; supra, p. 1070; supra, p. 226, per  Matthews, J.).

[167] Romer v. Evans; supra, p. 631; supra, p. 1627, per Kennedy, J.

[168] §1 of Article III of the 1987 Constitution provides: “No person shall be x x x denied the equal protection of the laws.”

[169] Foremost of these were the proponents of The Federalist Papers, namely: Alexander Hamilton, James Madison, and John Jay.

[170] US v. Dorr, 2 Phil. 269, 283-284, May 16, 1903, per Cooper, J.

[171] In re Shoop; supra, p. 223.

[172] Duarte v. Dade, 32 Phil. 36, 50, October 20, 1915.

[173] Mendoza, From McKinley’s Instructions to the New Constitution: Documents on the Philippine Constitutional System (1978), pp. 5-6.

[174] Cruz, Constitutional Law, supra, p. 124 (citing Lao H. Ichong v. Hernandez, 101 Phil. 1155, 1164, 1175-1176, May 31, 1957, per Labrador, J.).

[175] Actually, the equal protection clause was first raised on appeal in US v. Mendezona, 2 Phil. 353, July 25, 1903, but was not discussed by this Court thru Torres, J.  It was in fact only briefly mentioned in the Court’s denial of accused-appellee’s Motion for Rehearing.  Moreover, it referred to the clause as embodied not in our own Constitution but in that of the United States.

[176] Rubi v. The Provincial Board of Mindoro, 39 Phil. 660, March 7, 1919.

[177] Yick Wo v. Hopkins; supra, p. 373; supra, pp. 1072-1073; supra, p. 227, per Matthews, J.

[178] Rubi v. The Provincial Board of Mindoro; supra, p. 703, per Malcolm, J. (citing Yick Wo v. Hopkins; supra, p. 369; supra, p. 1070; supra, p. 226, per Matthews, J.)

[179] Rubi v. The Provincial Board of Mindoro; supra, pp. 707 and 718.

[180] People v. Vera, 65 Phil. 56, 126, November 16, 1937.

[181] People v. Cayat, 68 Phil. 12, May 5, 1939.

[182] Defensor-Santiago, The “New” Equal Protection, supra, p. 7.

“A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes.”  San Antonio School District v. Rodriguez, 411 US 1, 40, 36 L.Ed. 2d 16, 47, March 21, 1973, per Powell, J.  http://caselaw.lp.findlaw.com/ scripts/ getcase.pl?navby=case&court=us& vol=411&page=1. (Last visited September 13, 2004, 2:12:45 p.m. PST).

[183] City of Cleburne, Texas v. Cleburne Living Center; supra, p. 440; supra, p. 3254, per White, J.

[184] People v. Vera; supra, p. 126.  See People v. Cayat; supra, p. 18.

[185] Murphy v. Edmonds; supra, p. 108.

[186] Ibid.

[187] Johnson v. Robison, 415 US 361, 374-375, 94 S.Ct. 1160, 1169, March 4, 1974, per Brennan, J. (citing Reed v. Reed, 404 US 71, 76, 92 S.Ct. 251, 254, November 22, 1971).

[188] §20 of Article XII of the 1987 Constitution.

[189] Defensor-Santiago, The “New” Equal Protection, supra, p. 5.

[190] International Harvester Co. of America v. Missouri, 234 US 199, 210, 34 S.Ct. 859, 863, June 8, 1914, per McKenna, J.

[191] Federal Communications Commission v. Beach Communications, Inc.; supra, p. 315; supra, p. 2102 (citing Nordlinger v. Hahn, 505 US 1, 15, 112 S.Ct. 2326, 2334, June 18, 1992).

[192] Ibid., ibid., per Thomas, J.

[193] City of Cleburne, Texas v. Cleburne Living Center; supra, p. 444; supra, p. 3257, per White, J.

[194] Murphy v. Edmonds; supra, p. 114.

[195] These amendments as enumerated in the ponencia are:

1.         RA No. 7907 (1995) for Land Bank of the Philippines (LBP);

2.         RA No. 8282 (1997) for Social Security System (SSS);

3.         RA No. 8289 (1987) for Small Business Guarantee and Finance Corporation (SBGFC);

4.         RA No. 8291 (1997) for Government Service Insurance System (GSIS);

5.         RA No. 8523 (1998) for Development Bank of the Philippines (DBP);

6.         RA No. 8763 (2000) for Home Guaranty Corporation (HGC); and

7.         RA No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).

[196] In fact, as of April 1, 2002, the LBP and DBP already perform universal banking functions, thus allowing them to combine their resources with those of investment houses and to generate long-term investment capital.  As expanded commercial banks today, these two institutions are certainly subject to the regulatory and supervisory powers of the BSP.  Workers Desk, IBON Databank and Research Center, IBON Foundation, Inc., The Philippine Banking Sector, supra, pp. 17-18.

[197] Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54, 77, September 12, 1974, per Zaldivar, J.

[198] Ibid.

[199] Federal Communications Commission v. Beach Communications, Inc.; supra, pp. 315-316; supra, p. 2102, per Thomas, J. (citing United States Railroad Retirement Board v. Fritz; supra, p. 179; supra, p. 461, per Rehnquist, J. [later CJ.]).

[200] Vacco v. Quill; supra, p. 801; supra, p. 2298, per Rehnquist, CJ.

[201] San Antonio School District v. Rodriguez; supra, p. 33; supra, p. 43, per Powell, J.

[202] The effectivity date is August 12, 2004.  http://www.pdic.gov.ph/ra9302.htm. (Last visited September 1, 2004; 9:06:01 a.m. PST).

[203] Federal Communications Commission v. Beach Communications, Inc.; supra, p. 315; supra, p. 2102, per Thomas, J. (citing Lehnhausen v. Lake Shore Auto Parts Co., 410 US 356, 365, 93 S.Ct. 1001, 1006, February 22, 1973, per Douglas, J., quoting Carmichael v. Southern Coal & Coke Co., 301 US 495, 510, 57 S.Ct. 868, 872, May 24, 1937, per Stone, J.).

[204] Johnson v. Robison; supra, pp. 366-367; supra, p. 1165.

[205] Victoriano v. Elizalde Rope Workers’ Union; supra, p. 82.

[206] People v. Vera; supra, p. 128.

[207] Defensor-Santiago, The “New” Equal Protection, supra, pp. 7 & 9.

[208] Murphy v. Edmonds; supra, p. 109.

[209] Ibid., per Eldridge, J.  See City of Cleburne, Texas v. Cleburne Living Center; supra, p. 440; supra, p. 3254, per White, J.

[210] Korematsu v. US, 323 US 214, 216, 65 S.Ct. 193, 194, December 18, 1944, per Black, J.

[211] Loving v. Commonwealth of Virginia, 388 US 1, 12, 87 S.Ct. 1817, 1824, June 12, 1967.

[212] Skinner v. Oklahoma ex rel. Williamson; supra, p. 541; supra, p. 1113.

[213] Kramer v. Union Free School District No. 15, 395 US 621, 626, 89 S.Ct. 1886, 1889, June 16, 1969.

[214] Speech here refers to the right to engage in political expression.  Austin v. Michigan Chamber of Commerce, 494 US 652, 666, 110 S.Ct. 1391, 1401, March 27, 1990.

[215] Attorney General of New York v. Soto-Lopez, 476 US 898, 903-904, 106 S.Ct. 2317, 2321-2322, June 17, 1986.  See Murphy v. Edmonds; supra, p. 109.

[216] Defensor-Santiago, The “New” Equal Protection, supra, p. 11, March 1983.

[217] Massachusetts Bd. of Retirement v. Murgia, 96 S.Ct. 2562, US Mass., June 25, 1976, per curiam (citing San Antonio Independent School District v. Rodriguez; supra, p. 28; supra, p. 40, per Powell, J.).  http://web2.westlaw.com/find/default.wl?Serial Num=1976142431&FindType=Y&AP=&RS=WLW4.08&R=2.0&FN=_top&S=Split&MT=WestlawInternational&RLT=CLID_FQRLT425229&n=1 (Last visited September 2, 2004; 09:36:35 a.m. PST).

[218] For instance, it has long been declared by the US Supreme Court that “racial discrimination in public education is unconstitutional.”  Brown v. Board of Education of Topeka, Shawnee County, Kansas, 349 US 294, 298, 75 S.Ct. 753, 755, May 31, 1955, per Warren, CJ.

[219] Grutter v. Bollinger, 539 US 306, 326, 123 S.Ct. 2325, 2337-2338, June 23, 2003.

[220] In re Griffiths, 413 US 717, 721-724, 93 S.Ct. 2851, 2854-2856, June 25, 1973.

[221] Larson v. Valente, 456 US 228, 246, 102 S.Ct. 1673, 1684, April 21, 1982.

[222] City of Cleburne, Texas v. Cleburne Living Center; supra, p. 440; supra, p. 3254, per White, J.

[223] See ponencia.

[224] Yick Wo v. Hopkins; supra, p. 220; supra, p. 1064; supra, p. 356.

[225] Id., pp. 373-374; id., p. 1073; id., p. 227, per Matthews, J.

[226] Id., pp. 366, 368 and 374; id., pp. 1069, 1070, and 1073; id., pp. 225-226, and 228.

[227] Id., pp. 366 and 374; id., pp. 1069 and 1073; id., pp. 225 and 228.

[228] Maher v. Roe, 432 US 464, 470-471, 97 S.Ct. 2376, 2380-2381, June 20, 1977.

[229] San Antonio Independent School District v. Rodriquez; supra, p. 24; supra, p. 37, per Powell, J.

[230] Victoriano v. Elizalde Rope Workers’ Union; supra, p. 77, per Zaldivar, J. (citing International Harvester Co. v. Missouri; supra, p. 210; supra, p. 862, per McKenna, J.).

[231] Federal Communications Commission v. Beach Communications, Inc.; supra, p. 313; supra, p. 2101, per Thomas, J.

In City of Cleburne, Texas v. Cleburne Living Center, supra, p. 442; supra, p. 3255, the Court implied that the rational basis test is the standard of judicial review normally accorded economic and social legislation.

[232] Defensor-Santiago, The “New” Equal Protection, supra, pp. 7-8.

[233] City of Cleburne, Texas v. Cleburne Living Center; supra, p. 441; supra, p. 3255, per White, J.

[234] Id., pp. 440-441; id., pp. 3254-3255.

[235] Id., p. 441; id., p. 3255.

[236] Murphy v. Edmonds; supra, pp. 109-110.

[237] San Antonio Independent School District v. Rodriguez; supra, p. 98; supra, pp. 80-81, per dissenting opinion of Marshall, J.

[238] Dandridge v. Williams, 90 S.Ct. 1153, US Md., April 6, 1970, per Stewart, J. (citing Lindsley v. Natural Carbonic Gas Co., 220 US 61, 78, 31 S.Ct. 337, 340, March 13, 1911, per Van Devanter, J.).  http://web2.westlaw.com/find/ default.wl?SerialNum=197013420&FindType=Y&AP=&RS=WLW4.08&VR=2.0&FN=_top&SV=Split&MT=WestlawInternational&RLT=CLID_FQRLT111229&n=1.  (Last Visited September 3, 2004; 3:01:49 p.m. PST).  See also Murphy v. Edmonds, supra, p. 114.

[239] International Harvester Co. of America v. Missouri; supra, p. 210; supra, p. 862, per McKenna, J. (citing Atchison, T.& S.F.R. Co. v. Matthews, 174 US 96, 106, 19 S.Ct. 609, 613, April 17, 1899, per Brewer, J.).

[240] Goesært v. Cleary, 335 US 464, 467, 69 S.Ct. 198, 200, December 20, 1948, per Frankfurter, J. (citing Roschen v. Ward, 279 US 337, 339, 49 S.Ct. 336, April 22, 1929, per Holmes, J.).

[241] Katzenbach v. Morgan, 384 US 641, 657, 16 L.Ed. 2d 828, 839, June 13, 1966, per Brennan, J. (citing Semler v. Oregon State Board of Dental Examiners, 294 US 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086, 1089, April 1, 1935, per Hughes, CJ.).

[242] Churchill v. Rafferty, 32 Phil. 580, 611-612, December 21, 1915, per Trent, J. (quoting Keokee Consolidated Coke Co. v. Taylor, 234 US 224, 227, 34 S.Ct. 856, 857, June 8, 1914, per Holmes, J.).

[243] International Harvester Co. of America v. Missouri; supra, p. 214; supra, p. 864, per McKenna, J. (citing Missouri, Kansas, & Texas Railway Co. of Texas v. May, 194 US 267, 269, 24 S.Ct. 638, 639, May 2, 1904, per Holmes J.).

[244] Id., p. 215; id., p. 865, per McKenna, J.

[245] Petition, p. 3; rollo, p. 5.

[246] People v. Cayat; supra, p. 21.

[247] Peralta v. Comelec; supra, p. 55.

[248] People v. Cayat; supra, p. 21.

[249] Federal Communications Commission v. Beach Communications, Inc.; supra, p. 313; supra, p. 2101, per Thomas, J.