EN BANC

[A.C. No. 198-J. May 31, 1971.]

PAZ M. GARCIA , complainant , vs. HON. CATALINO MACARAIG,

JR., respondent.

SYLLABUS

1. JUDICIAL ETHICS; ADMINISTRATIVE COMPLAINT AGAINST JUDGE; IN

CASE AT BAR, RESPONDENT'S RECEIPT OF SALARIES WITHOUT ACTUALLY
PERFORMING HIS DUTIES AS JUDGE NOT DISHONESTY. — Complainant's
theory is that respondent collected or received salaries as judge when in fact
he has never acted as such, since the date he took his oath up to the filing
of the complaint. In the sense that respondent has not yet performed any
judicial function, it may be admitted that respondent has not really
performed the duties of judge. What is lost sight of, however, is that after
taking his oath and formally assuming his position as judge, respondent had
a perfect right to earn the salary of a judge even in the extreme supposition
that he did not perform any judicial function for he could, while preparing
himself for his new job or for any good reason, take a leave, as in fact, he
had planned to do, were it not for the request of the Secretary of Justice for
him to forego the idea and, instead, help the Department in whatever way
possible which would not, it must be presumed impair his position as a
judge. This is more so, when, as in this case, the government offices or
officers in duty bound to furnish him the necessary place and facilities for his
court and the performance of his functions have failed to provide him
therewith without any fault on his part. That respondent took it upon himself
to personally work for early action on the part of the corresponding officials
in this direction and, in his spare time made himself available to the
Department of Justice to assist the Secretary, what with his vast experience,
having worked therein for sixteen years, is, far from being dishonesty, to his
credit. In the circumstances, it was certainly not improper that he rendered
some kind of service to the government, since he was receiving salaries,
while being unable to perform his regular duties as judge without any fault
on his part.
2. ID.; ID.; SECTIONS 5, 55 AND 58 OF THE JUDICIARY ACT AND
CIRCULAR NO. 10 DATED FEBRUARY 6, 1952 OF THE DEPARTMENT OF
JUSTICE; APPLICABLE ONLY TO JUDGES ACTUALLY HOLDING TRIALS AND
HEARINGS AND MAKING DECISIONS AND ORDERS. — Admittedly respondent
has not prepared and submitted any of the reports of accomplishments and
status of cases in his sala which are usually required of judges under existing
laws as well as the corresponding circulars of the Department of Justice. The
reason is simple. He has not yet started performing any judicial functions.
None of those laws and circulars apply to him, for all of them contemplate
judges who are actually holding trials and hearings and making decisions and
orders. On the other hand, respondent could not be blamed for taking his
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 oath as he did, for he had a valid confirmed appointment in his favor. In
other words, he simply made himself available for the purposes for which he
was appointed. That he could not actually hold office in the court to which he
was appointed was not of his making. The other officials in charge of
providing him therewith seem to have been caught unprepared and have not
had enough time to have it ready. Conceivably, under the law, with the
permission of this Court, respondent could have been assigned to another
court pending all these preparations, but that is something within the
initiative and control of the Secretary of Justice and not of the respondent.
3. POLITICAL LAW; DOCTRINE OF SEPARATION OF POWERS; LIMITS OF
COLLABORATION OF JUDGE WITH OFFICERS OR OFFICES UNDER THE OTHER
GREAT DEPARTMENTS OF THE GOVERNMENT. — Of course, none of these is
to be taken as meaning that this Court looks with favor at the practice of
long standing, to be sure, of judges being detailed in the Department of
Justice to assist the Secretary even if it were only in connection with his work
of exercising administrative authority over the courts. The line between what
a judge may do and what he may not do in collaborating or working with
other offices or officers under the other great departments of the
government must always be kept clear and jealously observed, lest the
principle of separation of powers on which our government rests by mandate
of the people thru the Constitution be gradually eroded by practices
purportedly motivated by good intentions in the interest of the public
service. The fundamental advantages and the necessity of the independence
of said three departments from each other, limited only by the specific
constitutional precepts on check and balance between and among them,
have long been acknowledged as more paramount than the serving of any
temporary or passing governmental conveniences or exigencies. It is thus of
grave importance to the judiciary under our present constitutional scheme of
government that no judge of even the lowest court in this Republic should
place himself in a position where his actuations on matters submitted to him
for action or resolution would be subject to review and prior approval and,
worst still, reversal, before they can have legal effect, by any authority other
than the Court of Appeals or this Supreme Court, as the case may be.
Needless to say, this Court feels very strongly that it is best that this practice
is discontinued.
FERNANDO, J., concurring:
1. CONSTITUTIONAL LAW; DOCTRINE OF SEPARATION OF POWERS;
PRINCIPLE EMBODIED IN DOCTRINE; REASON FOR DOCTRINE. — The doctrine
of separation of powers, a basic concept under our Constitution, embodies
the principle of a tripartite division of governmental authority entrusted to
Congress, the President, and the Supreme Court as well as such inferior
courts as may be created by law. Three departments of government are thus
provided for, the legislative vested with the lawmaking function, the
executive with the enforcement of what has been thus enacted, and the
judiciary with the administration of justice, deciding cases according to law.
The reason for such a doctrine is to assure liberty, no one branch being
enabled to arrogate unto itself the whole power to govern and thus in a
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 position to impose its unfettered will. If it were so, the rights of the individual
could with impunity be disregarded; he could be placed at its mercy. The
three departments are coordinate and coequal, each having exclusive
cognizance of matters within its jurisdiction and supreme in its own sphere.
That is to guarantee independence, no interference being allowed on
matters left to the exclusive concern of each. Much less is control by only
one of the three departments of any or both of the others permissible.
2. ID.; ID.; MEMBER OF JUDICIARY SHOULD NOT ASSUME A POSITION
OR PERFORM A DUTY NON-JUDICIAL IN CHARACTER; RATIONALE THEREFOR.
— While the doctrine of separation of powers is a relative theory not to be
enforced with pedantic rigor, the practical demands of government
precluding its doctrinaire application, it cannot justify a member of the
judiciary being required to assume a position or perform a duty non-judicial
in character. That is implicit in the principle. Otherwise there is a plain
departure from its command. The essence of the trust reposed in him is to
decide. Only a higher court, as was emphasized by Justice Barredo, can pass
on his actuation. He is not a subordinate of an executive or legislative
official, however eminent. It is indispensable that there be no exception to
the rigidity of such a norm if he is, as expected, to be confined to the task of
adjudication. Fidelity to his sworn responsibility no less than the
maintenance of respect for the judiciary can be satisfied with nothing less . .
. Our holding today has been foreshadowed in Noblejas v. Teehankee, a
1968 decision. Justice J.B.L. Reyes who penned the opinion, first referred to
the above Richardson decision as well as to Federal Radio Commission v.
General Electric Co. It went on to state: "In this spirit, it has been held that
the Supreme Court of the Philippines and its members should not and cannot
be required to exercise any power or to perform any trust or to assume any
duty not pertaining to or connected with the administration of judicial
functions, and a law requiring the Supreme Court to arbitrate disputes
between public utilities was pronounced void in Manila Electric Co. vs. Pasay
Transportation Co. (57 Phil. 600)." It is clear from the above Noblejas
decision that even prior to the Constitution, there was a commitment to the
principle that a member of the judiciary cannot be asked to discharge non-
judicial functions. For in Manila Electric Co. v. Pasay Transportation Co.,
mentioned therein, Justice Malcolm, speaking for this Court, was quite
explicit. Thus: "The Supreme Court and its members should not and cannot
be required to exercise any power or to perform any trust or to assume any
duty not pertaining to or connected with the administering of judicial
functions."

RESOLUTION

BARREDO, J : p

Administrative complaint filed by one Paz M. Garcia against the

Honorable Catalino Macaraig, Jr., formerly Judge of the Court of First Instance
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 of Laguna, Branch VI, now Undersecretary of Justice, in his former capacity
as judge, for alleged "dishonesty, violation of his oath of office as judge . . .
gross incompetence, violation of Republic Act 296 or the Judiciary Act of
1948, as amended, (particularly) Sections 5, 55 and 58 thereof, committed
(allegedly) as follows:
"2. That from July 1, 1970 up to February 28, 1971 inclusive, as
such incumbent Judge, respondent herein, has not submitted his
monthly reports containing the number of cases filed, disposed of,
decided and/or resolved, the number of cases pending decisions for
one month, two months to over three months, together with the title,
number, number of hours of court session held a day, etc., as
evidenced by the certificate issued by Hon. Eulalio D. Pichay, Judicial
Superintendent, Dept. of Justice, copy of which is hereto attached as
Annex 'A', Item No. 1, in violation of Circular No. 10 of the Dept. of
Justice dated February 6, 1952, copy of which is hereto attached as
Annex 'B';

"3. That he has not submitted his certificate of service (New

Judicial Form No. 86, Revised 1966) from July to December, 1970 and
from January to February, 1971 inclusive as evidenced by the
certificate issued by Judge Pichay, Judicial Superintendent, Dept. of
Justice Annex 'A', Item No. 2 thereof;
"4. That as incumbent Judge of Branch VI, Court of First Instance
of Laguna and San Pablo and knowing fully well that he has never
performed his official duties or discharged the duties appertaining to
his office, he has collected and was paid his salaries from July to
December, 1970 and from January to February 1971 as evidenced by
the certificate issued by the cashier Mrs. Santos of the Department of
Justice hereto attached as Annex 'C' and the certificate of Mr. Pichay
Annex 'A', last paragraph thereof, aggravated by his repeated failure to
submit the certificate of service in flagrant violation of section 5 of the
Judiciary Act of 1948 as amended which provides as follows:
'. . . District judges, judges of City Courts, and municipal
Judges shall certify on their application for leave, and upon salary
vouchers presented by them for payment, or upon the payrolls
upon which their salaries are paid, that all special proceedings,
applications, petitions, motions, and all civil and criminal cases
which have been under submission for decision or determination
for a period of ninety days or more have been determined and
decided on or before the date of making the certificate and . . . x
no salary shall be paid without such certificate' (Emphasis
supplied).

"5. That his deliberate failure to submit the monthly reports from
July to December, 1970 and from January, 1971 to February, 1971
stating therein the number of hours of session that the Court holds
daily, the accomplishments of the Court constitutes a clear violation of
Sections 55 and 58 of the Judiciary Act of 1948, as amended.
"6. That by his deliberate violation of his Oath of Office as a
District Judge of the Court of First Instance of Laguna and San Pablo,
Branch VI he has manifested such moral bankruptcy as to deny his
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 fitness to perform or discharge official duties in the administration of
justice.
"7. That on June 29, 1970, respondent Judge wrote to the
Honorable Secretary of Justice informing him that he was entering upon
the performance of his duties, which letter of his reads in full:

'I have the honor to inform you that I am entering upon the
performance of the duties of the office of Judge of the Court of
First Instance of Laguna and San Pablo City (Branch VI) today,
June 29, 1970.'
"That such actuation of deliberately telling a deliberate falsehood
aggravates his moral bankruptcy incompatible to the requirements of
the highest degree of honesty, integrity and good moral character
appertaining to holding the position of Judge in the administration of
justice."

Upon being so required, in due time, respondent filed an answer

alleging pertinently that:
"THE FACTS
"Respondent took his oath as Judge of the Court of First Instance
of Laguna and San Pablo City with station at Calamba on June 29,
1970. The court, being one of the 112 newly created CFI branches, had
to be organized from scratch. After consultations with the officials of
the province of Laguna, the municipality of Calamba and the
Department of Justice, respondent decided to accept the offer of the
Calamba Municipal Government to supply the space for the courtroom
and offices of the court; to utilize the financial assistance promised by
the Laguna provincial government for the purchase of the necessary
supplies and materials; and to rely on the national government for the
equipment needed by the court (Under Section 190 of the Revised
Administrative Code, all these items must be furnished by the
provincial government. The provincial officials of Laguna, however,
informed the respondent that the province was not in a position to do
so).

"As to the space requirements of the court, the Municipal Mayor

of Calamba assured the respondent that the court could be
accommodated in the west wing of the Calamba municipal building as
soon as the office of the municipal treasurer and his personnel are
transferred to another location. When the projected transfer of the
municipal treasurer's office was about to be effected, the treasurer and
several municipal councilors objected. The municipal mayor then
requested the respondent to look over some of the office spaces for
rent in Calamba, with the commitment that the municipal government
will shoulder the payment of the rentals. Respondent's first choice was
the second floor of the Republic Bank branch in Calamba, but the
negotiations failed when the owner of the building refused to reduce
the rent to P300 a month. The next suitable space selected by
respondent was the second floor of the Laguna Development Bank.
After a month's negotiations, the municipality finally signed a lease
agreement with the owner on October 26, 1970. Another month
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 passed before the municipal government could release the amount
necessary for the improvements to convert the space that was rented,
which was a big hall without partitions, into a courtroom and offices for
the personnel of the court and for the assistant provincial fiscal.
Thereafter, upon respondent's representations, the provincial
government appropriated the amount of P5,000 for the purchase of the
supplies and materials needed by the court. Early in December, 1970
respondent also placed his order for the necessary equipment with the
Property Officer of the Department of Justice but, unfortunately, the
appropriation for the equipment of courts of first instance was released
only on December 23, 1970 and the procurement of the equipment
chargeable against this allotment is still under way (please see
enclosed certification of the Financial Officer of the Department of
Justice marked Annex 'A').
"When respondent realized that it would be sometime before he
could actually preside over his court, he applied for an extended leave
(during the 16 years he had worked in the Department of Justice,
respondent had, due to pressure of duties, never gone on extended
leave, resulting in his forfeiting all the leave benefits he had earned
beyond the maximum ten months allowed by the law). The Secretary
of Justice, however, prevailed upon respondent to forego his leave and
instead to assist him, without being extended a formal detail,
whenever respondent was not busy attending to the needs of his court.
"Charges Have No Basis —
"Complainant has charged respondent with dishonesty, violation
of his oath of office, grave incompetence and violation of Sections 5, 55
and 58 of the Judiciary Act.
"It is respectfully submitted that —
"A. Respondent's inability to perform his judicial duties under the
circumstances mentioned above does not constitute incompetence.
Respondent was, like every lawyer who gets his first appointment to
the bench, eager to assume his judicial duties and rid himself of the
stigma of being 'a judge without a sala', but forces and circumstances
beyond his control prevented him from discharging his judicial duties.
"B. Respondent's collection of salaries as judge does not
constitute dishonesty because aside from the time, effort and money
he spent in organizing the CFI at Calamba, he worked in the
Department of Justice (please see enclosed certification of
Undersecretary of Justice Guillermo S. Santos marked Annex 'B').
Indeed, even if respondent did no more than exert efforts to organize
his court, he could, as other judges have done, have collected his
salaries as judge without being guilty of dishonesty.
"Incidentally, when respondent took his oath as CFI judge which
position then carried a salary of P19,000 per annum, he automatically
ceased to be Chief of the Technical Staff of the Department of Justice
and Member of the Board of Pardons and Parole, positions from which
he was receiving P16,200 and P8,000 per annum, respectively. Also, in
anticipation of the judicial duties which he was about to assume,
respondent took a leave of absence from his professorial lecturer's
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 duties in the U.P. College of Law where he was receiving approximately
P600 a month.
"C. Sections 5, 55 and 58 of the Judiciary Act and Circular No. 10
dated February 6, 1952 of the Department of Justice are not applicable
to a Judge not actually discharging his judicial duties.
"The Department of Justice has never required judges who have
not actually started to perform their judicial duties to comply with the
abovementioned statutory provisions and circular (please see enclosed
certification of Judge Eulalio D. Pichay, Judicial Superintendent, marked
Annex 'C').
"Moreover, a reading of these sections and circular makes
evident the folly of requiring a judge who has not entered into the
performance of his judicial duties to comply with them. Taking Section
5, how could a judge who has not started to discharge his judicial
duties certify that 'all special proceedings, applications, petitions,
motions, and all civil and criminal cases, which have been under
submission for decision or determination for a period of ninety days or
more have been determined and decided on or before the date of
making the certificate.' And how could such a judge hold court in his
place of permanent station as required by Section 55; observe the
hours of daily sessions of the court as prescribed by Section 58: and
render the reports required by Circular No. 10 when his court is not yet
in physical existence. Clearly, therefore, Sections 5, 55 and 58 of the
Judiciary Act and Circular No. 10 cannot apply to such a judge."

In view of the nature of the allegations of complainant and respondent

in their respective complaint and answer and considering, in the light
thereof, that the material facts are more or less undisputed, the Court feels
that this case can be disposed of without any further proceeding.
After mature study and deliberation, the Court is convinced that the
complaint must be dismissed. To begin with, We cannot discern any tinge of
dishonesty in the actuations of the respondent complained of. As We see it,
the situation is not exactly as complainant has attempted to portray it.
Complainant's theory is that respondent collected or received salaries as
judge when in fact he has never acted as such, since the date he took his
oath up to the filing of the complaint. In the sense that respondent has not
yet performed any judicial function, it may be admitted that respondent has
not really performed the duties of judge. What is lost sight of, however, is
that after taking his oath and formally assuming this position as judge,
respondent had a perfect right to earn the salary of a judge even in the
extreme supposition that he did not perform any judicial function for he
could, while preparing himself for his new job or for any good reason, take a
leave, as in fact, he had planned to do, were it not for the request of the
Secretary of Justice for him to forego the idea and, instead, help the
Department in whatever way possible which would not, it must be
presumed, impair his position as a judge. This is more so, when, as in this
case, the government offices or officers in duty bound to furnish him the
necessary place and facilities for his court and the performance of his
functions have failed to provide him therewith without any fault on his part.
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 That respondent took it upon himself to personally work for early action on
the part of the corresponding officials in this direction and, in his spare time,
made himself available to the Department of Justice to assist the Secretary,
what with his vast experience, having worked therein for sixteen years, is,
far from being dishonesty, to his credit. In the circumstances, it was certainly
not improper that he rendered some kind of service to the government,
since he was receiving salaries, while being unable to perform his regular
duties as judge without any fault on his part. As to whether or not in doing
so he placed in jeopardy the independence of the judiciary and failed to act
according to the correct norm of conduct which a judge should observe vis-
a-vis service to the other departments of the government will be discussed
anon. At this juncture, the only point We settle is that complainant's theory
of dishonesty cannot hold water.
Admittedly respondent has not prepared and submitted any of the
reports of accomplishments and status of cases in his sala which are usually
required of judges under existing laws as well as the corresponding circulars
of the Department of Justice. The reason is simple. He has not yet started
performing any judicial functions. None of those laws and circulars apply to
him, for all of them contemplate judges who are actually holding trials and
hearings and making decisions and others. On the other hand, respondent
could not be blamed for taking his oath as he did, for he had a valid
confirmed appointment in his favor. In other words, he simply made himself
available for the purpose for which he was appointed. That he could not
actually hold office in the court to which he was appointed was not of his
making. The other officials in charge of providing him there with seem to
have been caught unprepared and have not had enough time to have it
ready. Conceivably, under the law, with the permission of this Court,
respondent could have been assigned to another court pending all these
preparations, but that is something within the initiative and control of the
Secretary of Justice and not of the respondent.
Of course, none of these is to be taken as meaning that this Court
looks with favor at the practice of long standing, to be sure, of judges being
detailed in the Department of Justice to assist the Secretary even if it were
only in connection with his work of exercising administrative authority over
the courts. The line between what a judge may do and what he may not do
in collaborating or working with other offices or officers under the other
great departments of the government must always be kept clear and
jealously observed, lest the principle of separation of powers on which our
government rests by mandate of the people thru the Constitution be
gradually eroded by practices purportedly motivated by good intentions in
the interest of the public service. The fundamental advantages and the
necessity of the independence of said three departments from each other,
limited only by the specific constitutional precepts on check and balance
between and among them, have long been acknowledged as more
paramount than the serving of any temporary or passing governmental
conveniences or exigencies. It is thus of grave importance to the judiciary
under our present constitutional scheme of government that no judge of
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 even the lowest court in this Republic should place himself in a position
where his actuations on matters submitted to him for action or resolution
would be subject to review and prior approval and, worst still, reversal,
before they can have legal effect, by any authority other than the Court of
Appeals or this Supreme Court, as the case may be. Needless to say, this
Court feels very strongly that it is best that this practice is discontinued.
WHEREFORE, the herein administrative complaint is hereby dismissed.
Let a copy of this resolution be furnished the Secretary of Justice.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Villamor,
JJ., concur.
Castro and Teehankee, JJ., took no part.

Separate Opinions
FERNANDO, J., concurring:

I join the rest of my brethren in yielding concurrence to the ably-written

opinion of Justice Barredo. Respondent Judge clearly should be exculpated of
the charge filed against him. What is more the opinion of the Court
possesses the merit of setting forth in forthright and unequivocal language
the disapproval of the practice hitherto followed of having members of the
judiciary perform non-judicial functions. There is no doubt to my mind of its
repugnancy to the fundamental concept of separation of powers. It is to that
aspect of the question as well as what, to my mind, is the doubtful
constitutionality of allowing the Secretary of Justice to exercise supervisory
authority over lower court judges that this brief concurring opinion addresses
itself.
1. The doctrine of separation of powers, a basic concept under our
Constitution, 1 embodies the principle of a tripartite division of governmental
authority entrusted to Congress, the President, and the Supreme Court as
well as such inferior courts as may be created by law. Three departments of
government are thus provided for, the legislative vested with the lawmaking
function, the executive with the enforcement of what has been thus enacted,
and the judiciary with the administration of justice, deciding cases according
to law. 3
It is to be admitted that the realities of government preclude the
independence of each of the departments from the other being absolute.
This is so especially as between the legislative and executive departments.
What the former enacts, the latter implements. To paraphrase Roosevelt, the
letter of the Constitution requires a separation, but the impulse of a common
purpose compels cooperation, It could be carried to the extent of such
powers being blended, without undue danger to liberty as proved by
countries having the parliamentary forms of government. This is especially
so in England and in Switzerland, where the tradition of freedom possesses
strength and durability. It does not admit of doubt, however, that of the
three branches, the judiciary is entrusted with a function the most sensitive
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 and delicate. It passes upon controversies and disputes not only between
citizens but between citizens and government, the limits of whose authority
must be respected. In a system like ours, every exercise of governmental
competence, whether coming from the President or from the lowest official,
may be challenged in court in an appropriate legal proceeding. This is an
aspect of the theory of checks and balance likewise provided for in the
Constitution. 4 It is thus indispensable that judicial independence should, by
all means, be made secure. Not only that. The feeling that judges are not in
any way subject to the influence of the executive and legislative branches
must be pervasive; otherwise, there would be loss of confidence in the
administration of justice. With that gone, the rule of law is placed in dire
peril.
Nor is the force, to my mind, of the preceding observation blunted by
the recognition that there could be no precise delineation of the respective
competence allotted to the legislative, the executive and the judicial
departments under the Constitution. Necessarily, overlapping and interlacing
of functions could not entirely be avoided. For as observed by Justice Holmes
in his famous dissent in a case of Philippine origin: 5 "The great ordinances of
the Constitution do not establish and divide fields of black and white. Even
the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. . . . When we come to the
fundamental distinctions it is still more obvious that they must be received
with a certain latitude or our government could not go on." 7
2. While the doctrine of separation of powers is a relative theory not to
be enforced with pedantic rigor, the practical demands of government
precluding its doctrinaire application, it cannot justify a member of the
judiciary being required to assume a position or perform a duty non-judicial
in character. That is implicit in the principle. Otherwise there is a plain
departure from its command. The essence of the trust reposed in him is to
decide. Only a higher court, as was emphasized by Justice Barredo, can pass
on his actuation. He is not a subordinate of an executive or legislative
official, however eminent. It is indispensable that there be no exception to
the rigidity of such a norm if he is, as expected, to be confined to the task of
adjudication. Fidelity to his sworn responsibility no less than the
maintenance of respect for the judiciary can be satisfied with nothing less.
It is apposite to quote from an opinion of Justice Cardozo, as Chief
Judge of the New York Court of Appeals, 8 when that Court nullified a section
of a New York statute that would vest in a justice of its Supreme Court the
power to investigate at the instance of its governor. His opinion explained
why: "He is made the delegate of the Governor in aid of an executive act,
the removal of a public officer . . . At the word of command he is to give over
the work of judging, and set himself to other work, the work of probing and
advising. His findings when made will have none of the authority of a
judgment. To borrow Bacon's phrase, they will not 'give the rule or sentence.'
They will not be preliminary or ancillary to any rule or sentence to be
pronounced by the judiciary in any of its branches. They will be mere advice
to the Governor, who may adopt them, or modify them, or reject them
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 altogether. From the beginnings of our history, the principle has been
enforced that there is no inherent power in Executive or Legislature to
charge the judiciary with administrative functions except when reasonably
incidental to the fulfillment of judicial duties . . . The exigencies of
government have made it necessary to relax as merely doctrinaire
adherence to a principle so flexible and practical, so largely a matter of
sensible approximation, as that of the separation of powers. Elasticity has
not meant that what is of the essence of the judicial function may be
destroyed by turning the power to decide into a pallid opportunity to consult
and recommend . . ." 9

Our holding today has been foreshadowed in Noblejas v. Teehankee, 10

a 1968 decision, Justice J.B.L. Reyes, who penned the opinion, first referred
to the above Richardson decision as well as to Federal Radio Commission v.
General Electric Co. 11 It went on to state: "In this spirit, it has been held that
the Supreme Court of the Philippines and its members should not and cannot
be required to exercise any power or to perform any trust or to assume any
duty not pertaining to or connected with the administration of judicial
functions; and a law requiring the Supreme Court to arbitrate disputes
between public utilities was pronounced void in Manila Electric Co. vs. Pasay
Transportation Co. (57 Phil. 600)." 12 It is clear from the above Noblejas
decision that even prior to the Constitution, there was a commitment to the
principle that a member of the judiciary cannot be asked to discharge non-
judicial functions. For in Manila Electric Co. v. Pasay Transportation Co., 14
3. Nonetheless, as now decided, respondent Judge Macaraig should not
be held in any wise accountable. No taint of bad faith can be attached to his
conduct. What he was required to do was in accordance with the practice
heretofore followed by the Department of Justice. He is, under the statute in
force, under the administrative supervision of its head. Nor can the good
faith of Secretary of Justice Abad Santos be impugned. What was done by
him was likewise in accordance with what previous secretaries of justice
were accustomed to do. The root of the evil then is the statutory authority of
the Department of Justice over courts of first instance and other inferior
courts. 15 While a distinction could be made between the performance of
judicial functions which in no way could be interfered with by the
Department and the task of administration which is executive in character,
still the conferment of such competence to a department head, an alter ego
of the President, is, to my mind, not only unwise but of doubtful
constitutionality. For in issuing administrative rules and regulations over
matters deemed non-judicial, they may trench upon the discretion of judges
which should be exercised according to their conscience alone. What is
more, the influence that the Secretary has over them is magnified. It is
already unavoidable under our scheme of government that they court his
goodwill; their promotion may at times depend on it. With this grant of
authority, the assertion of independence becomes even more difficult. It is
thus objectionable in principle and pernicious in operation. That certainly is
not the way to reduce to the minimum any participation of the executive in
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 judicial affairs arising from the power to appoint. As it is, even when the
government as the adverse party in criminal cases, tax suits, and other
litigations is in the right, a favorable decision from the lower courts could be
looked upon with suspicion. The judiciary must not only be independent; it
must appear to be so.
The presence in the statute books of such power of administrative
oversight then, is, to my mind, anomalous. More specifically, were it not for
such power granted the department head, respondent Judge in this case
could not have been called upon to assist the Secretary of Justice.
Considering that the Constitutional Convention is about to meet, it is to be
hoped that it be made clear that the judiciary is to be totally freed from any
supervisory authority of an executive department.
Makasiar, J., concurs.

Footnotes

FERNANDO, J., concurring:

1. Cf. "The separation of powers is a fundamental principle in our system of

government." Angara v. Electoral Commission, 63 Phil 139, 156 (1936) per
Laurel, J.

2. Law covers not only statutes but likewise, treaties, executive orders to
implement statutes, and ordinances, municipal corporations being delegated
with the competence of legislating over local affairs.
3. Cf. Luzon Stevedoring Corp. v. Social Security Commission, L-26175, July 31,
1970, 34 SCRA 178.

4. As pointed out by Justice Laurel in the previously cited Angara decision, the
President may approve or disapprove legislation, his veto however being
subject to be overriden; he may convene the legislative body in special
sessions; Congress may confirm or reject Presidential appointments; it may
apportion the jurisdiction of the courts and determine what funds to
appropriate for their support; it may impeach certain officials; and lastly as
far as the judiciary is concerned, it has the power of judicial review enabling
it to annul executive or legislative acts.
5. Springer V. Government of the Philippine Islands, 277 US 189 (1928).

6. Ibid., pp. 209-210.

7. Ibid., p. 211.
8. In re Richardson, 160 NE 655 (1928).

9. Cf. Hayburn's Case, 2 Dall. 409 (1792); United States v. Ferreira, 13 How. 40
(1851); Gordon v. United States, 117 US 697 (1865); Matter of Sanborn, 148
US 222 (1893); Interstate Commerce Commission v. Brimson, 154 US 447
(1894); Muskrat v. United States, 219 US 346 (1911); Tutun v. United States,
270 US 738 (1926); Liberty Warehouse Co. v. Grannis, 273 US 70 (1927).

10. L-28790, April 29, 1968, 23 SCRA 405.

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 11. 281 US 469 (1930).
12. Noblejas v. Teehankee, L-28790, April 29, 1968, 23 SCRA 405, 409-410.

13. 57 Phil. 600 (1932).

14. Ibid., p. 605.

15. Section 83, Administrative Code of 1917, as amended, reads as follows:

"Bureaus and offices under the Department of Justice. — The Department of
Justice shall have executive supervision over the Office of the Solicitor
General, the Courts of First Instance and the Inferior Courts, the Public
Service Commission, the Bureau of Prisons, the General Land Registration
Office, the Court of Industrial Relations, the National Bureau of Investigation,
the Bureau of Immigration, the Board of Pardons and Parole, the Deportation
Board and the Code Commission. The Office of the Government Corporate
Counsel shall be merged with the Office of the Solicitor General. . . ."

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