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DISSENTING OPINION

GONZAGA-REYES, J.:

With due respect, I am constrained to dissent from the acceptance by the Court en banc of the referral of the motions for reconsideration in the cases at bar. The justification for the referral is stated thus:

"These cases involve a vast tract of land around ninety-nine (99) hectares presumptively belonging to the Republic of the Philippines, which land had been adjudicated to private individuals under a decision allegedly rendered by a court without jurisdiction. Since the validity of the said decision and of the original certificate of title as well as transfer certificates of title issued pursuant thereto is contingent on the character or classification of subject area at the time it was so adjudicated to private persons, the determination of the same is essential. The decision sought to be reconsidered does not clearly reflect or indicate the correct character of the land involved at the time the private respondents obtained a degree of registration thereover. Thus, should it be established that indeed the land in question was still within the forest zone and inalienable at the time of its disposition to private parties, reversal of this Court's decision is in order.

In Lemketkai Sons Milling, Inc. vs. Court of Appeals,¹ this Court has acknowledged that it is not infallible and that, if upon examination an error in judgment is perceived, the Court is not obliged to blindly adhere to such decision and the parties are not precluded from seeking relief by way of a motion for reconsideration. In this jurisdiction, rectification of an error, more than anything else, is paramount."

The fact alone that the property involved covers an area of 99 hectares does not provide a cogent reason to elevate the cases to the Court en banc. Nowhere in the extent guidelines for referral to the Court en banc is the value of the property subject of the case relevant to determine whether the division should refer a matter to the Court en banc. Moreover, the validity of OCT No. 4216, which petitioner Republic raised as a principal issue in the instant petition, had already been long settled by final judgments of this Court in three (3) cases.²cräläwvirtualibräry

It was also submitted that the cases are of sufficient importance to be "reexamined and reviewed" by the Court en banc pursuant to S. C. Circular No. 2-89 dated February 7, 1989 as amended by the Resolution of November 18, 1993, which considers the following, among others, as en banc cases:

xxx.......xxx.......xxx

"9. All other cases as the Court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention."

It is believed that the acceptance by the court en banc of the referral on the proposal of one member of the division is not called for on the following grounds:

(1).......The motion for reconsideration from the decision unanimously adopted by the 3rd Division on September 2, 1999 is still pending. If there is any error to be rectified in the said decision, the matter should be left to the sound judgment of the members of the division which promulgated the decision unless there is a demonstrated incapacity or disqualification on the part of its members to render a fair and just resolution of the motion for reconsideration.

(2).......The court en banc is not an appellate court to which a decision or resolution may be appealed:

Article VIII, Section 4, of the 1987 Constitution provides:

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

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

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

It is implicit in the paragraph immediately preceding that decisions or resolutions of a division of the court, when concurred in by a majority of its members who actually took part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the Supreme Court itself. The Supreme Court sitting en banc is not an appellate court vis a vis its Divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en banc, and sits veritably as the Court en banc itself. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc.

(3).......Circular No. 2-89 of the Court en banc laid down the following Guidelines and Rules on the referral to the Court en banc of cases assigned to a Division:

"1. The Supreme Court sits either en banc or in Divisions of three, five or seven Members (Sec. 4[1]. Article VIII, 1987 Constitution). At present the Court has three Divisions of five Members each.

2. A decision or resolution of a Division of the Court, when concurred in by a majority of its Members who actually took part in the deliberations on the issues in a case and voted thereon, and in no case without the concurrence of at least three of such Members, is a decision or resolution of the Supreme Court (Section 4[3]. Article VIII, 1987 Constitution).

3. The Court en banc is not an Appellate Court to which decisions or resolutions of a Division may be appealed.

4. At any time after a Division takes cognizance of a case and before a judgment or resolution therein rendered becomes final and executory, the Division may refer the case en consulta to the Court en banc which, after consideration of the reasons of the Division for such referral, may return the case to the Division or accept the case for decision or resolution.

4a. Paragraph [f] of the Resolution of this Court of 23 February 1984 in Bar Matter No. 205 (formerly item 6, en banc Resolution dated 29 September 1977), enumerating the cases considered as en banc cases, states:

"f. Cases assigned to a division including motions for reconsideration which in the opinion of at least three (3) members merit the attention of the Court en banc and are acceptable by a majority vote of the actual members of the Court en banc."

5. A resolution of the Division denying a party's motion for referral to the Court en banc of any Division case, shall be final and not appealable to the Court en banc.

6. When a decision or resolution is referred by a Division to the Court en banc, the latter may, in the absence of sufficiently important reasons, decline to take cognizance of the same, in which case, the decision or resolution shall be returned to the referring Division.

7. No motion for reconsideration of the action of the Court en banc declining to take cognizance of a referral by a Division, shall be entertained.

8. This Circular shall take effect on March 1, 1989."

In the Resolution of the Court en banc dated November 18, 1993, the following were enumerated as the cases to be considered as "en banc cases":

"1. Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question;

2. Criminal cases in which the appealed decision imposes the death penalty;

3. Cases raising novel questions of law;

4. Cases affecting ambassadors, other public ministers and consuls;

5. Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission on Elections, and Commission on Audit;

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000.000 or both;

7. Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed.

8. Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court en banc and are acceptable to a majority of the actual membership of the court en banc; and

9. All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention."

Notably, the rule that "cases assigned to a division which is the opinion of at least three (3) members thereof merit the attention of the Court en banc and are acceptable to a majority of the actual membership of the Court en banc" has been reiterated.

However, a new paragraph was added in the 1993 Resolution, as follows:

"9. All other cases as the Court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention."

The immediately foregoing paragraph may lend itself to an interpretation that any case which the Court en banc by majority vote of its members "may deem of sufficient importance to merit its attention" is an en banc case.

This interpretation is of doubtful validity and soundness.

To begin with, Resolution dated November 18, 1993 is essentially an amendment to Sections 15 and 16, Rule 136 of the Rules of Court which deals with the form ("unglazed paper," margins, number of copies, etc.) of unprinted and printed papers to be filed with this Court. This Resolution was clearly not intended to lay down new guidelines or rules for referral to the court en banc of cases assigned to a Division. Thus, the principle that the court en banc is not an appellate court to which decisions or resolutions of a Division may be appealed could not have been intended to be abrogated. Article VIII, Section 4 of the Constitution, earlier quoted, expressly provides that "when the required number (the concurrence of at least three members of the division) is not obtained, the case shall be decided en banc." The obvious contemplation is that when the required vote of at least three members is obtained, the banc's participation is not called for.

(4) It is true that the Constitution itself recognizes the power of the Supreme Court to require other cases to be heard en banc (Article VIII, Sec. 4 (2) ). As pointed out, the November 18, 1993 Resolution quoted earlier, could not, by reading the issuance in proper context, have been intended to expand the enumeration of en banc cases. A reasonable interpretation is that paragraph 9 refers to cases accepted by the banc pursuant to existing rules, foremost of which is that the referral requires the concurrence of at least three of the members of the division. If the provision "all other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention" was intended to give the court en banc a general residual power and prerogative to cause the elevation of any case assigned to a division, without a consulta from the division itself, this intent should be ineluctably expressed, having in mind the essential and traditional role of a division of the court sitting veritably as the court en banc itself.

The court en banc should be shielded from the importunings of litigants who perceive themselves aggrieved by a decision of a division of the court and resort to the convenience of an appeal to the court en banc on the plea that its case is "of sufficient importance to merit its attention." In the Sumilao case, the majority of the banc's members refused to take the case where there was a two-two tie vote in the division for the elevation of the motion for reconsideration to the court en banc. In an earlier precedent involving the conviction of Imelda Marcos' by the Sandiganbayan, the case was considered as deserving of a full court treatment, despite the fact that the motion for reconsideration did not garner a majority vote in the division. The Court should establish a consistent policy on these referrals for the stability of its policies and procedures.

The prerogative to take out a case from the division without the concurrence of a majority of its members, should, if at all, be used only for clearly compelling reasons; otherwise the decision of the Court en banc to take cognizance of the matter itself would be suspect of irregularity and the precedent would be difficult to justify before litigants who may be similarly situated.

I vote to deny the motions to refer the motions for reconsideration to the Court en banc.

¹ 262 SCRA 464, 467.

² Margolles v. CA, 230 SCRA 97; Peltan Development Inc., et. al. v. CA, 270 SCRA 83; Goldenrod, Inc. vs. CA and Peltan Development, Inc. G.R. No. 112038, August 10, 1994.