Consti Law Part 1

CONSTITUTIONAL LAW 1 (Atty.
Niceforo Solis) 1
1ST EXAM COVERAGE CASE COMPILATION
I. IN GENERAL
A. POLITICAL LAW DEFINED
MACARIOLA v. ASUNCION
114 S 77 (1982)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court
of First Instance of Leyte, respondent.
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R.
Macariola charged respondent Judge Elias B. Asuncion of
the Court of First Instance of Leyte, now Associate Justice of
the Court of Appeals, with "acts unbecoming a judge."
The factual setting of the case is stated in the report dated
May 27, 1971 of then Associate Justice Cecilia Muoz Palma
of the Court of Appeals now retired Associate Justice of the
Supreme Court, to whom this case was referred on October
28, 1968 for investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte
was a complaint for partition filed by Sinforosa R. Bales, Luz
R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R.
Macariola, defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of the
plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola
alleged among other things that; a) plaintiff Sinforosa R.
Bales was not a daughter of the deceased Francisco Reyes;
b) the only legal heirs of the deceased were defendant
Macariola, she being the only offspring of the first marriage
of Francisco Reyes with Felisa Espiras, and the remaining
plaintiffs who were the children of the deceased by his
second marriage with Irene Ondez; c) the properties left by
the deceased were all the conjugal properties of the latter
and his first wife, Felisa Espiras, and no properties were
acquired by the deceased during his second marriage; d) if
there was any partition to be made, those conjugal
properties should first be partitioned into two parts, and one
part is to be adjudicated solely to defendant it being the
share of the latter's deceased mother, Felisa Espiras, and
the other half which is the share of the deceased Francisco
Reyes was to be divided equally among his children by his

two marriages.
On June 8, 1963, a decision was rendered by respondent
Judge Asuncion in Civil Case 3010, the dispositive portion of
which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the
Court, upon a preponderance of evidence, finds and so
holds, and hereby renders judgment (1) Declaring the
plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes and Priscilla Reyes as the only children
legitimated by the subsequent marriage of Francisco Reyes
Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R.
Bales to have been an illegitimate child of Francisco Reyes
Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal
partnership of the spouses Francisco Reyes Diaz and Felisa
Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416
as belonging to the spouses Francisco Reyes Diaz and Irene
Ondez in common partnership; (5) Declaring that 1/2 of Lot
No. 1184 as belonging exclusively to the deceased Francisco
Reyes Diaz; (6) Declaring the defendant Bernardita R.
Macariola, being the only legal and forced heir of her mother
Felisa Espiras, as the exclusive owner of one-half of each of
Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and
the remaining one-half (1/2) of each of said Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of
one-fourth (1/4) of Lot No. 1154 as belonging to the estate of
Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the
exclusive owner of one-half (1/2) of Lot No. 2304 and onehalf (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining
one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of
one-fourth (1/4) of Lot No. 3416 as belonging to the estate of
Francisco Reyes Diaz; (8) Directing the division or partition
of the estate of Francisco Reyes Diaz in such a manner as to
give or grant to Irene Ondez, as surviving widow of
Francisco Reyes Diaz, a hereditary share of. one-twelfth
(1/12) of the whole estate of Francisco Reyes Diaz (Art. 996
in relation to Art. 892, par 2, New Civil Code), and the
remaining portion of the estate to be divided among the
plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such a way that the
extent of the total share of plaintiff Sinforosa R. Bales in the
hereditary estate shall not exceed the equivalent of two-fifth
(2/5) of the total share of any or each of the other plaintiffs
and the defendant (Art. 983, New Civil Code), each of the
latter to receive equal shares from the hereditary estate,
(Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of
Jaro, O.G. [3rd Ed.] p. 33);
(9) Directing the parties, within thirty days after this judgment
shall have become final to submit to this court, for approval a
project of partition of the hereditary estate in the proportion
above indicated, and in such manner as the parties may, by
agreement, deemed convenient and equitable to them taking
into consideration the location, kind, quality, nature and value
of the properties involved; (10) Directing the plaintiff
Sinforosa R. Bales and defendant Bernardita R. Macariola to
pay the costs of this suit, in the proportion of one-third (1/3)
CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 2

by the first named and two-thirds (2/3) by the second named;
and (I 1) Dismissing all other claims of the parties [pp 27-29
of Exh. C].
The decision in civil case 3010 became final for lack of an
appeal, and on October 16, 1963, a project of partition was
submitted to Judge Asuncion which is marked Exh. A.
Notwithstanding the fact that the project of partition was not
signed by the parties themselves but only by the respective
counsel of plaintiffs and defendant, Judge Asuncion
approved it in his Order dated October 23, 1963, which for
convenience is quoted hereunder in full:
The parties, through their respective counsels, presented to
this Court for approval the following project of partition:
COMES NOW, the plaintiffs and the defendant in the aboveentitled case, to this Honorable Court respectfully submit the
following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong
exclusively to Bernardita Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square
meters along the eastern part of the lot shall be awarded
likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to
Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square
meters along the western part of the lot shall likewise be
awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among
Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes,
Adela Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416
after taking the portions awarded under item (2) and (4)
above shall be awarded to Luz Reyes Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in
equal shares, provided, however that the remaining portion
of Lot No. 3416 shall belong exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of
Partition indicated above which is made in accordance with
the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban
City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban
City
While the Court thought it more desirable for all the parties to
have signed this Project of Partition, nevertheless, upon
assurance of both counsels of the respective parties to this

Court that the Project of Partition, as above- quoted, had
been made after a conference and agreement of the plaintiffs
and the defendant approving the above Project of Partition,
and that both lawyers had represented to the Court that they
are given full authority to sign by themselves the Project of
Partition, the Court, therefore, finding the above-quoted
Project of Partition to be in accordance with law, hereby
approves the same. The parties, therefore, are directed to
execute such papers, documents or instrument sufficient in
form and substance for the vesting of the rights, interests
and participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the delivery
of the respective properties adjudicated to each one in view
of said Project of Partition, and to perform such other acts as
are legal and necessary to effectuate the said Project of
Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on
November 11, 1963, only for the purpose of giving authority
to the Register of Deeds of the Province of Leyte to issue the
corresponding transfer certificates of title to the respective
adjudicatees in conformity with the project of partition (see
Exh. U).
One of the properties mentioned in the project of partition
was Lot 1184 or rather one-half thereof with an area of
15,162.5 sq. meters. This lot, which according to the decision
was the exclusive property of the deceased Francisco
Reyes, was adjudicated in said project of partition to the
plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all
surnamed Reyes in equal shares, and when the project of
partition was approved by the trial court the adjudicatees
caused Lot 1184 to be subdivided into five lots denominated
as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a
stenographer in Judge Asuncion's court (Exhs. F, F-1 and V1), while Lot 1184-E which had an area of 2,172.5556 sq.
meters was sold on July 31, 1964 to Dr. Arcadio Galapon
(Exh. 2) who was issued transfer certificate of title No. 2338
of the Register of Deeds of the city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a
portion of Lot 1184-E with an area of around 1,306 sq.
meters to Judge Asuncion and his wife, Victoria S. Asuncion
(Exh. 11), which particular portion was declared by the latter
for taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses
Galapon conveyed their respective shares and interest in Lot
1184-E to "The Traders Manufacturing and Fishing Industries

Inc." (Exit 15 & 16). At the time of said sale the stockholders
of the corporation were Dominador Arigpa Tan, Humilia
Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the
latter's wife, Victoria S. Asuncion, with Judge Asuncion as
the President and Mrs. Asuncion as the secretary (Exhs. E-4
to E-7). The Articles of Incorporation of "The Traders
Manufacturing and Fishing Industries, Inc." which we shall
henceforth refer to as "TRADERS" were registered with the
Securities and Exchange Commission only on January 9,
1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968
the instant complaint dated August 6, 1968 alleging four
causes of action, to wit: [1] that respondent Judge Asuncion
violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was
one of those properties involved in Civil Case No. 3010
decided by him; [2] that he likewise violated Article 14,
paragraphs I and 5 of the Code of Commerce, Section 3,
paragraph H, of R.A. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, Section 12, Rule XVIII of the
Civil Service Rules, and Canon 25 of the Canons of Judicial
Ethics, by associating himself with the Traders
Manufacturing and Fishing Industries, Inc., as a stockholder
and a ranking officer while he was a judge of the Court of
First Instance of Leyte; [3] that respondent was guilty of
coddling an impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain Dominador
Arigpa Tan who openly and publicly advertised himself as a
practising attorney when in truth and in fact his name does
not appear in the Rolls of Attorneys and is not a member of
the Philippine Bar; and [4] that there was a culpable defiance
of the law and utter disregard for ethics by respondent Judge
(pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968
his answer to which a reply was filed on October 16, 1968 by
herein complainant. In Our resolution of October 28, 1968,
We referred this case to then Justice Cecilia Muoz Palma of
the Court of Appeals, for investigation, report and
recommendation. After hearing, the said Investigating Justice
submitted her report dated May 27, 1971 recommending that
respondent Judge should be reprimanded or warned in
connection with the first cause of action alleged in the
complaint, and for the second cause of action, respondent
should be warned in case of a finding that he is prohibited
under the law to engage in business. On the third and fourth
causes of action, Justice Palma recommended that
respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11,
1968 (pp. 481, 477, rec.), complainant herein instituted an
action before the Court of First Instance of Leyte, entitled
"Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales,
et al., defendants," which was docketed as Civil Case No.
4235, seeking the annulment of the project of partition made
pursuant to the decision in Civil Case No. 3010 and the two
orders issued by respondent Judge approving the same, as
well as the partition of the estate and the subsequent
conveyances with damages. It appears, however, that some
defendants were dropped from the civil case. For one, the
case against Dr. Arcadio Galapon was dismissed because

he was no longer a real party in interest when Civil Case No.
4234 was filed, having already conveyed on March 6, 1965 a
portion of lot 1184-E to respondent Judge and on August 31,
1966 the remainder was sold to the Traders Manufacturing
and Fishing Industries, Inc. Similarly, the case against
defendant Victoria Asuncion was dismissed on the ground
that she was no longer a real party in interest at the time the
aforesaid Civil Case No. 4234 was filed as the portion of Lot
1184 acquired by her and respondent Judge from Dr. Arcadio
Galapon was already sold on August 31, 1966 to the Traders
Manufacturing and Fishing industries, Inc. Likewise, the
cases against defendants Serafin P. Ramento, Catalina
Cabus, Ben Barraza Go, Jesus Perez, Traders
Manufacturing and Fishing Industries, Inc., Alfredo R.
Celestial and Pilar P. Celestial, Leopoldo Petilla and
Remedios Petilla, Salvador Anota and Enriqueta Anota and
Atty. Zotico A. Tolete were dismissed with the conformity of
complainant herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the
Court of First Instance of Leyte, who was directed and
authorized on June 2, 1969 by the then Secretary (now
Minister) of Justice and now Minister of National Defense
Juan Ponce Enrile to hear and decide Civil Case No. 4234,
rendered a decision, the dispositive portion of which reads
as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First
Instance of Leyte has jurisdiction to take cognizance of the
issue of the legality and validity of the Project of Partition
[Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"]
approving the partition;
(2) dismissing the complaint against Judge Elias B.
Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to
pay defendant Judge Elias B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS
[P400,000.00] for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS
[P200,000.001 for exemplary damages;
(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for
nominal damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for
Attorney's Fees.
B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA
VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN

(1) Dismissing the complaint against the defendants
Mariquita Villasin and the heirs of the deceased Gerardo
Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita
Villasin and the heirs of Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA
R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL
CASE NO. 3010
(1) Dismissing the complaint against defendants Sinforosa
R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R.
Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO
RAMO
(1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio
Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid
decision was elevated to the Court of Appeals upon
perfection of the appeal on February 22, 1971.
I
WE find that there is no merit in the contention of
complainant Bernardita R. Macariola, under her first cause of
action, that respondent Judge Elias B. Asuncion violated
Article 1491, paragraph 5, of the New Civil Code in acquiring
by purchase a portion of Lot No. 1184-E which was one of
those properties involved in Civil Case No. 3010. 'That Article
provides:
Article 1491. The following persons cannot acquire by
purchase, even at a public or judicial action, either in person
or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior
and inferior courts, and other officers and employees
connected with the administration of justice, the property and
rights in litigation or levied upon an execution before the
court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of
acquiring by assignment and shall apply to lawyers, with
respect to the property and rights which may be the object of
any litigation in which they may take part by virtue of their
profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the
sale or assignment of the property which is the subject of
litigation to the persons disqualified therein. WE have
already ruled that "... for the prohibition to operate, the sale
or assignment of the property must take place during the
pendency of the litigation involving the property" (The
Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979],
Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641,
646 [1978]).
In the case at bar, when the respondent Judge purchased
on March 6, 1965 a portion of Lot 1184-E, the decision in
Civil Case No. 3010 which he rendered on June 8, 1963 was
already final because none of the parties therein filed an
appeal within the reglementary period; hence, the lot in
question was no longer subject of the litigation. Moreover, at
the time of the sale on March 6, 1965, respondent's order
dated October 23, 1963 and the amended order
dated November 11, 1963 approving the October 16, 1963
project of partition made pursuant to the June 8, 1963
decision, had long become final for there was no appeal from
said orders.
Furthermore, respondent Judge did not buy the lot in
question on March 6, 1965 directly from the plaintiffs in Civil
Case No. 3010 but from Dr. Arcadio Galapon who earlier
purchased on July 31, 1964 Lot 1184-E from three of the
plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R.
Bakunawa after the finality of the decision in Civil Case No.
3010. It may be recalled that Lot 1184 or more specifically
one-half thereof was adjudicated in equal shares to Priscilla
Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and
Anacorita Reyes in the project of partition, and the same was
subdivided into five lots denominated as Lot 1184-A to 1184E. As aforestated, Lot 1184-E was sold on July 31, 1964 to
Dr. Galapon for which he was issued TCT No. 2338 by the
Register of Deeds of Tacloban City, and on March 6, 1965 he
sold a portion of said lot to respondent Judge and his wife
who declared the same for taxation purposes only. The
subsequent sale on August 31, 1966 by spouses Asuncion
and spouses Galapon of their respective shares and interest
in said Lot 1184-E to the Traders Manufacturing and Fishing
Industries, Inc., in which respondent was the president and
his wife was the secretary, took place long after the finality of
the decision in Civil Case No. 3010 and of the subsequent
two aforesaid orders therein approving the project of
partition.
While it appears that complainant herein filed on or
about November 9 or 11, 1968 an action before the Court of
First Instance of Leyte docketed as Civil Case No. 4234,
seeking to annul the project of partition and the two orders
approving the same, as well as the partition of the estate and
the subsequent conveyances, the same, however, is of no
moment.
The fact remains that respondent Judge purchased on
March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio
Galapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his two
questioned orders dated October 23, 1963 and November
11, 1963. Therefore, the property was no longer subject of
litigation.

The subsequent filing on November 9, or 11, 1968 of Civil
Case No. 4234 can no longer alter, change or affect the
aforesaid facts that the questioned sale to respondent
Judge, now Court of Appeals Justice, was effected and
consummated long after the finality of the aforesaid decision
or orders.
Consequently, the sale of a portion of Lot 1184-E to
respondent Judge having taken place over one year after the
finality of the decision in Civil Case No. 3010 as well as the
two orders approving the project of partition, and not during
the pendency of the litigation, there was no violation of
paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July
31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla
Reyes, Adela Reyes and Luz R. Bakunawa was only a mere
scheme to conceal the illegal and unethical transfer of said
lot to respondent Judge as a consideration for the approval
of the project of partition. In this connection, We agree with
the findings of the Investigating Justice thus:
And so we are now confronted with this all-important
question whether or not the acquisition by respondent of a
portion of Lot 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related
to the Order of respondent approving the project of partition,
Exh. A.
Respondent vehemently denies any interest or participation
in the transactions between the Reyeses and the Galapons
concerning Lot 1184-E, and he insists that there is no
evidence whatsoever to show that Dr. Galapon had acted, in
the purchase of Lot 1184-E, in mediation for him and his
wife. (See p. 14 of Respondent's Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no
evidence in the record showing that Dr. Arcadio Galapon
acted as a mere "dummy" of respondent in acquiring Lot
1184-E from the Reyeses. Dr. Galapon appeared to this
investigator as a respectable citizen, credible and sincere,
and I believe him when he testified that he bought Lot 1184E in good faith and for valuable consideration from the
Reyeses without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that respondent
Judge acted illegally in approving the project of partition
although it was not signed by the parties, We quote with
approval the findings of the Investigating Justice, as follows:
1. I agree with complainant that respondent should have
required the signature of the parties more particularly that of
Mrs. Macariola on the project of partition submitted to him for
approval; however, whatever error was committed by
respondent in that respect was done in good faith as
according to Judge Asuncion he was assured by Atty.
Bonifacio Ramo, the counsel of record of Mrs. Macariola,

That he was authorized by his client to submit said project of
partition, (See Exh. B and tsn p. 24, January 20, 1969).
While it is true that such written authority if there was any,
was not presented by respondent in evidence, nor did Atty.
Ramo appear to corroborate the statement of respondent,
his affidavit being the only one that was presented as
respondent's Exh. 10, certain actuations of Mrs. Macariola
lead this investigator to believe that she knew the contents of
the project of partition, Exh. A, and that she gave her
conformity thereto. I refer to the following documents:
1) Exh. 9 Certified true copy of OCT No. 19520 covering
Lot 1154 of the Tacloban Cadastral Survey in which the
deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a).
On tills certificate of title the Order dated November 11,
1963, (Exh. U) approving the project of partition was duly
entered and registered on November 26, 1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale
executed by Bernardita Reyes Macariola onOctober 22,
1963, conveying to Dr. Hector Decena the one-fourth share
of the late Francisco Reyes-Diaz in Lot 1154. In this deed of
sale the vendee stated that she was the absolute owner of
said one-fourth share, the same having been adjudicated to
her as her share in the estate of her father Francisco Reyes
Diaz as per decision of the Court of First Instance of Leyte
under case No. 3010 (Exh. 7-A). The deed of sale was duly
registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be
noted that in the project of partition dated October 16, 1963,
which was approved by respondent on October 23, 1963,
followed by an amending Order on November 11, 1963, Lot
1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola.
It is this 1/4 share in Lot 1154 which complainant sold to Dr.
Decena on October 22, 1963, several days after the
preparation of the project of partition.
Counsel for complainant stresses the view, however, that the
latter sold her one-fourth share in Lot 1154 by virtue of the
decision in Civil Case 3010 and not because of the project of
partition, Exh. A. Such contention is absurd because from
the decision, Exh. C, it is clear that one-half of one- fourth of
Lot 1154 belonged to the estate of Francisco Reyes Diaz
while the other half of said one-fourth was the share of
complainant's mother, Felisa Espiras; in other words, the
decision did not adjudicate the whole of the one-fourth of Lot
1154 to the herein complainant (see Exhs. C-3 & C-4).
Complainant became the owner of the entire one-fourth of
Lot 1154 only by means of the project of partition, Exh. A.
Therefore, if Mrs. Macariola sold Lot 1154 on October 22,
1963, it was for no other reason than that she was wen
aware of the distribution of the properties of her deceased
father as per Exhs. A and B. It is also significant at this point
to state that Mrs. Macariola admitted during the crossexamination that she went to Tacloban City in connection
with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November
28, 1968) from which we can deduce that she could not have

been kept ignorant of the proceedings in civil case 3010
relative to the project of partition.
corporation having been organized to engage in business.

Said Article provides that:
Complainant also assails the project of partition because

according to her the properties adjudicated to her were
insignificant lots and the least valuable. Complainant,
however, did not present any direct and positive evidence to
prove the alleged gross inequalities in the choice and
distribution of the real properties when she could have easily
done so by presenting evidence on the area, location, kind,
the assessed and market value of said properties. Without
such evidence there is nothing in the record to show that
there were inequalities in the distribution of the properties of
complainant's father (pp. 386389, rec.).
Article 14 The following cannot engage in commerce,

either in person or by proxy, nor can they hold any office or
have any direct, administrative, or financial intervention in
commercial or industrial companies within the limits of the
districts, provinces, or towns in which they discharge their
duties:
Finally, while it is. true that respondent Judge did not violate
paragraph 5, Article 1491 of the New Civil Code in acquiring
by purchase a portion of Lot 1184-E which was in litigation in
his court, it was, however, improper for him to have acquired
the same. He should be reminded of Canon 3 of the Canons
of Judicial Ethics which requires that: "A judge's official
conduct should be free from the appearance of impropriety,
and his personal behavior, not only upon the bench and in
the performance of judicial duties, but also in his everyday
life, should be beyond reproach." And as aptly observed by
the Investigating Justice: "... it was unwise and indiscreet on
the part of respondent to have purchased or acquired a
portion of a piece of property that was or had been in
litigation in his court and caused it to be transferred to a
corporation of which he and his wife were ranking officers at
the time of such transfer. One who occupies an exalted
position in the judiciary has the duty and responsibility of
maintaining the faith and trust of the citizenry in the courts of
justice, so that not only must he be truly honest and just, but
his actuations must be such as not give cause for doubt and
mistrust in the uprightness of his administration of justice. In
this particular case of respondent, he cannot deny that the
transactions over Lot 1184-E are damaging and render his
actuations open to suspicion and distrust. Even if respondent
honestly believed that Lot 1184-E was no longer in litigation
in his court and that he was purchasing it from a third person
and not from the parties to the litigation, he should
nonetheless have refrained from buying it for himself and
transferring it to a corporation in which he and his wife were
financially involved, to avoid possible suspicion that his
acquisition was related in one way or another to his official
actuations in civil case 3010. The conduct of respondent
gave cause for the litigants in civil case 3010, the lawyers
practising in his court, and the public in general to doubt the
honesty and fairness of his actuations and the integrity of our
courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant
alleged that respondent Judge violated paragraphs 1 and 5,
Article 14 of the Code of Commerce when he associated
himself with the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking officer, said
1. Justices of the Supreme Court, judges and officials of the

department of public prosecution in active service. This
provision shall not be applicable to mayors, municipal
judges, and municipal prosecuting attorneys nor to those
who by chance are temporarily discharging the functions of
judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not
engage in commerce in a determinate territory.
It is Our considered view that although the aforestated
provision is incorporated in the Code of Commerce which is
part of the commercial laws of the Philippines, it, however,
partakes of the nature of a political law as it regulates the
relationship between the government and certain public
officers and employees, like justices and judges.
Political Law has been defined as that branch of public law
which deals with the organization and operation of the
governmental organs of the State and define the relations of
the state with the inhabitants of its territory (People vs.
Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that
political law embraces constitutional law, law of public
corporations, administrative law including the law on public
officers and elections. Specifically, Article 14 of the Code of
Commerce partakes more of the nature of an administrative
law because it regulates the conduct of certain public officers
and employees with respect to engaging in business: hence,
political in essence.
It is significant to note that the present Code of Commerce is
the Spanish Code of Commerce of 1885, with some
modifications made by the "Commission de Codificacion de
las Provincias de Ultramar," which was extended to the
Philippines by the Royal Decree of August 6, 1888, and took
effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United
States and later on from the United States to the Republic of
the Philippines, Article 14 of this Code of Commerce must be
deemed to have been abrogated because where there is
change of sovereignty, the political laws of the former
sovereign, whether compatible or not with those of the new
sovereign, are automatically abrogated, unless they are
expressly re-enacted by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315,
330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by
one nation to another, either following a conquest or
otherwise, ... those laws which are political in their nature
and pertain to the prerogatives of the former government
immediately cease upon the transfer of sovereignty.
(Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in
conflict with the, laws of the new sovereign continue in force
without the express assent or affirmative act of the
conqueror, the political laws do not. (Halleck's Int. Law, chap.
34, par. 14). However, such political laws of the prior
sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if
the conqueror shall so declare by affirmative act of the
commander-in-chief during the war, or by Congress in time
of peace. (Ely's Administrator vs. United States, 171 U.S.
220, 43 L. Ed. 142). In the case of American and Ocean Ins.
Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L.
Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been
held that the relations of the inhabitants with each other
undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created
between them and the government which has acquired their
territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the
law which may be denominated political, is necessarily
changed, although that which regulates the intercourse and
general conduct of individuals, remains in force, until altered
by the newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]),
this Court stated that: "It is a general principle of the public
law that on acquisition of territory the previous political
relations of the ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued
the effectivity of the aforestated provision of the Code of
Commerce after the change of sovereignty from Spain to the
United States and then to the Republic of the Philippines.
Consequently, Article 14 of the Code of Commerce has no
legal and binding effect and cannot apply to the respondent,
then Judge of the Court of First Instance, now Associate
Justice of the Court of Appeals.
It is also argued by complainant herein that respondent
Judge violated paragraph H, Section 3 of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. In addition to
acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest

in any business, contract or transaction in connection with
which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any Iaw from
having any interest.
Respondent Judge cannot be held liable under the
aforestated paragraph because there is no showing that
respondent participated or intervened in his official capacity
in the business or transactions of the Traders Manufacturing
and Fishing Industries, Inc. In the case at bar, the business
of the corporation in which respondent participated has
obviously no relation or connection with his judicial office.
The business of said corporation is not that kind where
respondent intervenes or takes part in his capacity as Judge
of the Court of First Instance. As was held in one case
involving the application of Article 216 of the Revised Penal
Code which has a similar prohibition on public officers
against directly or indirectly becoming interested in any
contract or business in which it is his official duty to
intervene, "(I)t is not enough to be a public official to be
subject to this crime; it is necessary that by reason of his
office, he has to intervene in said contracts or transactions;
and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot
commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th
Supp. 134, cited by Justice Ramon C. Aquino; Revised
Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid
corporation gained any undue advantage in its business
operations by reason of respondent's financial involvement in
it, or that the corporation benefited in one way or another in
any case filed by or against it in court. It is undisputed that
there was no case filed in the different branches of the Court
of First Instance of Leyte in which the corporation was either
party plaintiff or defendant except Civil Case No. 4234
entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa
O. Bales, et al.,"wherein the complainant herein sought to
recover Lot 1184-E from the aforesaid corporation. It must be
noted, however, that Civil Case No. 4234 was filed only on
November 9 or 11, 1968 and decided on November 2, 1970
by CFI Judge Jose D. Nepomuceno when respondent Judge
was no longer connected with the corporation, having
disposed of his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same
paragraph because there is no provision in both the 1935
and 1973 Constitutions of the Philippines, nor is there an
existing law expressly prohibiting members of the Judiciary
from engaging or having interest in any lawful business.
It may be pointed out that Republic Act No. 296, as
amended, also known as the Judiciary Act of 1948, does not
contain any prohibition to that effect. As a matter of fact,
under Section 77 of said law, municipal judges may engage
in teaching or other vocation not involving the practice of law
after office hours but with the permission of the district judge
concerned.

Likewise, Article 14 of the Code of Commerce which
prohibits judges from engaging in commerce is, as
heretofore stated, deemed abrogated automatically upon the
transfer of sovereignty from Spain to America, because it is
political in nature.
And under Sections 5, 6 and 7, Article X of the 1973

Constitution, only the Supreme Court can discipline judges of
inferior courts as well as other personnel of the Judiciary.
Moreover, the prohibition in paragraph 5, Article 1491 of the

New Civil Code against the purchase by judges of a property
in litigation before the court within whose jurisdiction they
perform their duties, cannot apply to respondent Judge
because the sale of the lot in question to him took place after
the finality of his decision in Civil Case No. 3010 as well as
his two orders approving the project of partition; hence, the
property was no longer subject of litigation.
It is true that under Section 33 of the Civil Service Act of

1959: "The Commissioner may, for ... violation of the existing
Civil Service Law and rules or of reasonable office
regulations, or in the interest of the service, remove any
subordinate officer or employee from the service, demote
him in rank, suspend him for not more than one year without
pay or fine him in an amount not exceeding six months'
salary." Thus, a violation of Section 12 of Rule XVIII is a
ground for disciplinary action against civil service officers and
employees.
In addition, although Section 12, Rule XVIII of the Civil

Service Rules made pursuant to the Civil Service Act of 1959
prohibits an officer or employee in the civil service from
engaging in any private business, vocation, or profession or
be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the
head of department, the same, however, may not fall within
the purview of paragraph h, Section 3 of the Anti-Graft and
Corrupt Practices Act because the last portion of said
paragraph speaks of a prohibition by the Constitution or
law on any public officer from having any interest in any
business and not by a mere administrative rule or regulation.
Thus, a violation of the aforesaid rule by any officer or
employee in the civil service, that is, engaging in private
business without a written permission from the Department
Head may not constitute graft and corrupt practice as
defined by law.
However, judges cannot be considered as subordinate civil

service officers or employees subject to the disciplinary
authority of the Commissioner of Civil Service; for, certainly,
the Commissioner is not the head of the Judicial Department
to which they belong. The Revised Administrative Code
(Section 89) and the Civil Service Law itself state that the
Chief Justice is the department head of the Supreme Court
(Sec. 20, R.A. No. 2260) [1959]); and under the 1973
Constitution, the Judiciary is the only other or second branch
of the government (Sec. 1, Art. X, 1973 Constitution).
Besides, a violation of Section 12, Rule XVIII cannot be
considered as a ground for disciplinary action against judges
because to recognize the same as applicable to them, would
be adding another ground for the discipline of judges and, as
aforestated, Section 67 of the Judiciary Act recognizes only
two grounds for their removal, namely, serious misconduct
and inefficiency.
On the contention of complainant that respondent Judge

violated Section 12, Rule XVIII of the Civil Service Rules, We
hold that the Civil Service Act of 1959 (R.A. No. 2260) and
the Civil Service Rules promulgated thereunder, particularly
Section 12 of Rule XVIII, do not apply to the members of the
Judiciary. Under said Section 12: "No officer or employee
shall engage directly in any private business, vocation, or
profession or be connected with any commercial, credit,
agricultural or industrial undertaking without a written
permission from the Head of Department ..."
Moreover, under Section 16(i) of the Civil Service Act of

1959, it is the Commissioner of Civil Service who has original
and exclusive jurisdiction "(T)o decide, within one hundred
twenty days, after submission to it, all administrative cases
against permanent officers and employees in the competitive
service, and, except as provided by law, to have final
authority to pass upon their removal, separation, and
suspension and upon all matters relating to the conduct,
discipline, and efficiency of such officers and employees; and
prescribe standards, guidelines and regulations governing
the administration of discipline" (emphasis supplied). There
is no question that a judge belong to the non-competitive or
unclassified service of the government as a Presidential
appointee and is therefore not covered by the aforesaid
provision. WE have already ruled that "... in interpreting
Section 16(i) of Republic Act No. 2260, we emphasized that
only permanent officers and employees who belong to the
classified service come under the exclusive jurisdiction of the
Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15
SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619
[1963]).
It must be emphasized at the outset that respondent, being a

member of the Judiciary, is covered by Republic Act No. 296,
as amended, otherwise known as the Judiciary Act of 1948
and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or
dismiss judges was then vested in the President of the
Philippines, not in the Commissioner of Civil Service, and
only on two grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of the Supreme
Court, which alone is authorized, upon its own motion, or
upon information of the Secretary (now Minister) of Justice to
conduct the corresponding investigation. Clearly, the
aforesaid section defines the grounds and prescribes the
special procedure for the discipline of judges.
Although the actuation of respondent Judge in engaging in

private business by joining the Traders Manufacturing and
Fishing Industries, Inc. as a stockholder and a ranking
officer, is not violative of the provissions of Article 14 of the
Code of Commerce and Section 3(h) of the Anti-Graft and

Corrupt Practices Act as well as Section 12, Rule XVIII of the
Civil Service Rules promulgated pursuant to the Civil Service
Act of 1959, the impropriety of the same is clearly
unquestionable because Canon 25 of the Canons of Judicial
Ethics expressly declares that:
A judge should abstain from making personal investments in
enterprises which are apt to be involved in litigation in his
court; and, after his accession to the bench, he should not
retain such investments previously made, longer than a
period sufficient to enable him to dispose of them without
serious loss. It is desirable that he should, so far as
reasonably possible, refrain from all relations which would
normally tend to arouse the suspicion that such relations
warp or bias his judgment, or prevent his impartial attitude of
mind in the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent
Judge and his wife had withdrawn on January 31, 1967 from
the aforesaid corporation and sold their respective shares to
third parties, and it appears also that the aforesaid
corporation did not in anyway benefit in any case filed by or
against it in court as there was no case filed in the different
branches of the Court of First Instance of Leyte from the time
of the drafting of the Articles of Incorporation of the
corporation on March 12, 1966, up to its incorporation on
January 9, 1967, and the eventual withdrawal of respondent
on January 31, 1967 from said corporation. Such disposal or
sale by respondent and his wife of their shares in the
corporation only 22 days after the incorporation of the
corporation, indicates that respondent realized that early that
their interest in the corporation contravenes the aforesaid
Canon 25. Respondent Judge and his wife therefore deserve
the commendation for their immediate withdrawal from the
firm after its incorporation and before it became involved in
any court litigation
III
With respect to the third and fourth causes of action,
complainant alleged that respondent was guilty of coddling
an impostor and acted in disregard of judicial decorum, and
that there was culpable defiance of the law and utter
disregard for ethics. WE agree, however, with the
recommendation of the Investigating Justice that respondent
Judge be exonerated because the aforesaid causes of action
are groundless, and WE quote the pertinent portion of her
report which reads as follows:
The basis for complainant's third cause of action is the claim
that respondent associated and closely fraternized with
Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney (see Exhs. I, I-1 and J) when
in truth and in fact said Dominador Arigpa Tan does not
appear in the Roll of Attorneys and is not a member of the
Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan
was an "impostor" and claims that all the time he believed
that the latter was a bona fide member of the bar. I see no
reason for disbelieving this assertion of respondent. It has

been shown by complainant that Dominador Arigpa Tan
represented himself publicly as an attorney-at-law to the
extent of putting up a signboard with his name and the words
"Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and
it was but natural for respondent and any person for that
matter to have accepted that statement on its face value.
"Now with respect to the allegation of complainant that
respondent is guilty of fraternizing with Dominador Arigpa
Tan to the extent of permitting his wife to be a godmother of
Mr. Tan's child at baptism (Exh. M & M-1), that fact even if
true did not render respondent guilty of violating any canon
of judicial ethics as long as his friendly relations with
Dominador A. Tan and family did not influence his official
actuations as a judge where said persons were concerned.
There is no tangible convincing proof that herein respondent
gave any undue privileges in his court to Dominador Arigpa
Tan or that the latter benefitted in his practice of law from his
personal relations with respondent, or that he used his
influence, if he had any, on the Judges of the other branches
of the Court to favor said Dominador Tan.
Of course it is highly desirable for a member of the judiciary
to refrain as much as possible from maintaining close
friendly relations with practising attorneys and litigants in his
court so as to avoid suspicion 'that his social or business
relations or friendship constitute an element in determining
his judicial course" (par. 30, Canons of Judicial Ethics), but if
a Judge does have social relations, that in itself would not
constitute a ground for disciplinary action unless it be clearly
shown that his social relations be clouded his official
actuations with bias and partiality in favor of his friends (pp.
403-405, rec.).
In conclusion, while respondent Judge Asuncion, now
Associate Justice of the Court of Appeals, did not violate any
law in acquiring by purchase a parcel of land which was in
litigation in his court and in engaging in business by joining a
private corporation during his incumbency as judge of the
Court of First Instance of Leyte, he should be reminded to be
more discreet in his private and business activities, because
his conduct as a member of the Judiciary must not only be
characterized with propriety but must always be above
suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE
OF THE COURT OF APPEALS IS HEREBY REMINDED TO
BE MORE DISCREET IN HIS PRIVATE AND BUSINESS
ACTIVITIES.
SO ORDERED.
II. BACKGROUND OF THE PRESENT CONSTITUTION

A.
THE FEBRUARY 1986 REVOLUTION AND THE

PROCLAMATION OF THE PROVISIONAL
CONSTITUTION
LAWYERS LEAGUE v. AQUINO

May 22, 1986
IN RE: BERMUDEZ
145 S 160 (1986)
SUPREME COURT
Manila
G.R. No. 76180 October 24, 1986
IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N
PER CURIAM:
In a petition for declaratory relief impleading no respondents,
petitioner, as a lawyer, quotes the first paragraph of Section
5 (not Section 7 as erroneously stated) of Article XVIII of the
proposed 1986 Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and
Vice-President elected in the February 7, 1986 election is, for
purposes of synchronization of elections, hereby extended to
noon of June 30, 1992.
The first regular elections for the President and VicePresident under this Constitution shall be held on the second
Monday of May, 1992.
matter of public record and common public knowledge that

the Constitutional Commission refers therein to incumbent
President Corazon C. Aquino and Vice-President Salvador
H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for
purposes of synchronization of elections. Hence, the second
paragraph of the cited section provides for the holding on the
second Monday of May, 1992 of the first regular elections for
the President and Vice-President under said 1986
Constitution. In previous cases, the legitimacy of the
government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not
established pursuant to the 1973 Constitution. The said
cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions
state no cause of action. For the legitimacy of the Aquino
government is not a justiciable matter. It belongs to the realm
of politics where only the people of the Philippines are the
judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino
which is in effective control of the entire country so that it is
not merely a de facto government but in fact and law a de
jure government. Moreover, the community of nations has
recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to
uphold the fundamental law of the Republic under her
government. (Joint Resolution of May 22, 1986 in G.R. No.
73748 [Lawyers League for a Better Philippines, etc. vs.
President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs.
Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor
Clifton U. Ganay vs. Corazon C. Aquino, et al.])
Claiming that the said provision "is not clear" as to whom it

refers, he then asks the Court "to declare and answer the
question of the construction and definiteness as to who,
among the present incumbent President Corazon Aquino
and Vice-President Salvador Laurel and the elected
President Ferdinand E. Marcos and Vice-President Arturo M.
Tolentino being referred to under the said Section 7 (sic) of
ARTICLE XVIII of the TRANSITORY PROVISIONS of the
proposed 1986 Constitution refers to, . ...
For the above-quoted reason, which are fully applicable to

the petition at bar, mutatis mutandis, there can be no
question that President Corazon C. Aquino and VicePresident Salvador H. Laurel are the incumbent and
legitimate President and Vice-President of the Republic of
the Philippines.or the above-quoted reasons, which are fully
applicable to the petition at bar,
The petition is dismissed outright for lack of jurisdiction and

for lack for cause of action.
LETTER OF ASSOCIATE JUSTICE PUNO

210 S 589 (1992)
Prescinding from petitioner's lack of personality to sue or to

bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is
elementary that this Court assumes no jurisdiction over
petitions for declaratory relief. More importantly, the petition
amounts in effect to a suit against the incumbent President of
the Republic, President Corazon C. Aquino, and it is equally
elementary that incumbent Presidents are immune from suit
or from being brought to court during the period of their
incumbency and tenure.
The petition furthermore states no cause of action.
Petitioner's allegation of ambiguity or vagueness of the
aforequoted provision is manifestly gratuitous, it being a
ACCORDINGLY, the petition is hereby dismissed.
EN BANC
[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of
the Court of Appeals dated 14 November 1990.
RESOLUTION
PADILLA, J.:

Petitioner Associate Justice Reynato S. Puno, a member of

the Court of Appeals, wrote a letter dated 14 November 1990
addressed to this Court, seeking the correction of his
seniority
ranking
in
the
Court
of
Appeals.
It appears from the records that petitioner was first appointed
Associate Justice of the Court of Appeals on 20 June 1980
but took his oath of office for said position only on 29
November 1982, after serving as Assistant Solicitor General
in the Office of the Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized
and became the Intermediate Appellate Court pursuant to
Batas Pambansa Blg. 129 entitled "An Act Reorganizing the
Judiciary. Appropriating Funds Therefor and For Other
Purposes." 2 Petitioner was appointed Appellate Justice in
the First Special Cases Division of the Intermediate
Appellate Court. On 7 November 1984, petitioner accepted
an appointment to be ceased to be a member of the
Judiciary.
3
The aftermath of the EDSA Revolution in February 1986
brought about a reorganization of the entire government,
including the Judiciary. To effect the reorganization of the
Intermediate Appellate Court and other lower courts, a
Screening Committee was created, with the then Minister of
Justice, now Senator Neptali Gonzales as Chairman and
then Solicitor General, now Philippine Ambassador to the
United Nations Sedfrey Ordoez as Vice Chairman.
President Corazon C. Aquino, exercising legislative powers
by virtue of the revolution, issued Executive Order No. 33 to
govern the aforementioned reorganization of the Judiciary. 4
The Screening Committee recommended the return of
petitioner as Associate Justice of the new Court of Appeals
and assigned him the rank of number eleven (11) in the
roster of appellate court justices. When the appointments
were signed by President Aquino on 28 July 1986,
petitioners seniority ranking changed, however, from number
eleven
(11)
to
number
twenty
six
(26).
5
Petitioner now alleges that the change in his seniority
ranking could only be attributed to inadvertence for,
otherwise, it would run counter to the provisions of Section 2
of Executive Order No. 33, which reads:chanrobles virtual
lawlibrary
"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg.
129,
is
hereby
amended
to
read
as
follows:jgc:chanrobles.com.ph
"SEC. 2. Organization. There is hereby created a Court of
Appeals which shall consist of a Presiding Justice and fifty
Associate Justices who shall be appointed by the President
of the Philippines. The Presiding Justice shall be so
designated in his appointment and the Associate Justice
shall have precedence according to the dates of their
respective appointments, or when the appointments of two or
more shall bear the same date, according to the order in
which their appointments were issued by the President. Any

Member who is reappointed to the Court after rendering
service in any other position in the government shall retain
the precedence to which he was entitled under his original
appointment, and his service in the Court shall, for all intents
and purpose be considered as continuous and
uninterrupted."
6
Petitioner elaborates that President Aquino is presumed to
have intended to comply with her own Executive Order No.
33 so much so that the correction of the inadvertent error
would only implement the intent of the President as well as
the spirit of Executive Order No. 33 and will not provoke any
kind of constitutional confrontation (between the President
and
the
Supreme
Court).
7
Petitioner points to the case of Justice Oscar Victoriano,
former Presiding Justice of the Court of Appeals who,
according to petitioner, was transferred from his position as
Justice of the Court of Appeals to the Ministry of Justice as
Commissioner of Land Registration and in 1986 was
reappointed to the Court of Appeals. Petitioner states that his
(Victorianos) stint in the Commission of Land Registration
did not adversely affect his seniority ranking in the Court of
Appeals, for, in his case, Executive Order No. 33 was
correctly
applied.
8
In a resolution of the Court en banc dated 29 November
1990, the Court granted Justice Punos request. 9 It will be
noted that before the issuance of said resolution, there was
no written opposition to, or comment on petitioners aforesaid
request. The dispositive portion of the resolution
reads:jgc:chanrobles.com.ph
"IN VIEW WHEREOF, the petition of Associate Justice
Reynato S. Puno for correction of his seniority ranking in the
Court of Appeals is granted. The presiding Justice of the
Court of Appeals, the Honorable Rodolfo A. Nocon, is hereby
directed to correct the seniority rank of Justice Puno from
number twelve (12) to number five (5). Let copies of this
Resolution be furnished the Court Administrator and the
Judicial and Bar Council for their guidance and information."
10
A motion for reconsideration of the resolution of the Court en
banc dated 29 November 1990 was later filed by Associate
Justices Jose C. Campos, Jr. and Luis A. Javellana, two (2)
of the Associate Justices affected by the ordered correction.
They contend that the present Court of Appeals is a new
Court with fifty one (51) members and that petitioner could
not claim a reappointment to a prior court; neither can he
claim that he was returning to his former court, for the courts
where he had previously been appointed ceased to exist at
the
date
of
his
last
appointment.
11
The Court en banc in a resolution dated 17 January 1992
required the petitioner to file his comment on the motion for
reconsideration of the resolution dated 29 November 1990.
In his Comment, petitioner argues that, by virtue of Executive
Order No. 33 read in relation to B.P. Blg. 129, his seniority

ranking in the Court of Appeals is now number five (5) for,
though President Aquino rose to power by virtue of a
revolution, she had pledged at the issuance of Proclamation
No. 3 (otherwise known as the Freedom Constitution) that
"no right provided under the unratified 1973 Constitution
(shall) be absent in the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive
Order No. 33 virtually re-enacted the last sentence of Sec. 3,
Chapter 1 of B.P. Blg. 129, statutory construction rules on
simultaneous repeal and re-enactment mandate, according
to petitioner, the preservation and enforcement of all rights
and liabilities which had accrued under the original statute.
13 Furthermore, petitioner avers that, although the power of
appointment is executive in character and cannot be usurped
by any other branch of the Government, such power can still
be regulated by the Constitution and by the appropriate law,
in this case, by the limits set by Executive Order NO. 33 14
for the power of appointment cannot be wielded in violation
of
law.
15
Justices Javellana and Campos were required by the Court
to file their reply to Justice Punos comment on their motion
for reconsideration of the resolution of the Court en banc
dated
24
January
1991.chanrobles.com:cralaw:red
In their Reply and Supplemental Reply, Associate Justices
Javellana and Campos submit that the appeal or request for
correction filed by the petitioner was addressed to the wrong
party. They aver that as petitioner himself had alleged the
mistake to be an "inadvertent error" of the Office of the
President, ergo, he should have filed his request for
correction also with said Office of the President and not
directly with the Supreme Court. 16 Furthermore, they point
out that petitioner had indeed filed with the Office of the
President a request or petition for correction of his ranking,
(seniority) but the same was not approved such that his
recourse should have been an appropriate action before the
proper court and impleading all parties concerned. The
aforesaid non-approval by the Office of the President they
argue, should be respected by the Supreme Court "not only
on the basis of the doctrine of separation of powers but also
their presumed knowledge ability and even expertise in the
laws they are entrusted to enforce" 17 for it (the nonapproval) is a confirmation that petitioners seniority ranking
at the time of his appointment by President Aquino was, in
fact, deliberate and not an "inadvertent error" as petitioner
would
have
the
Court
believe.
18
The resolution of this controversy is not a pleasant task for
the Court since it involves not only members of the next
highest court of the land but persons who are close to
members of this Court. But the controversy has to be
resolved. The core issue in this case is whether the present
Court of Appeals is a new court such that it would negate
any claim to precedence or seniority admittedly enjoyed by
petitioner in the Court of Appeals and Intermediate Appellate
Court existing prior to Executive Order No. 33 or whether the
present Court of Appeals is merely a continuation of the
Court of Appeals and Intermediate Appellate Court existing
prior
to
said
Executive
Order
No.
33.
It is the holding of the Court that the present Court of

Appeals is a new entity, different and distinct from the Court
of Appeals or the Intermediate Appellate Court existing prior
to Executive Order No. 33, for it was created in the wake of
the massive reorganization launched by the revolutionary
government of Corazon C. Aquino in the aftermath of the
people
power
(EDSA)
revolution
in
1986.
A resolution has been defined as "the complete overthrow of
the established government in any country or state by those
who were previously subject to it" 19 or as "a sudden, radical
and fundamental change in the government or political
system, usually effected with violence or at least some acts
of violence." 20 In Kelsens book, General Theory of Law and
State, it is defined as that which "occurs whenever the legal
order of a community is nullified and replaced by a new order
. . . a way not prescribed by the first order itself." 21
It was through the February 1986 revolution, a relatively
peaceful one, and more popularly known as the "people
power revolution" that the Filipino people tore themselves
away from an existing regime. This revolution also saw the
unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has
been defined as "an inherent right of a people to cast out
their rulers, change their policy or effect radical reforms in
their system of government or institutions by force or a
general uprising when the legal and constitutional methods
of making such change have proved inadequate or are so
obstructed as to be unavailable." 22 It has been said that
"the locus of positive law-making power lies with the people
of the state" and from there is derived "the right of the people
to abolish, to reform and to alter any existing form of
government without regard to the existing constitution." 23
The three (3) clauses that precede the text of the Provisional
(Freedom) Constitution, 24 read:jgc:chanrobles.com.ph
"WHEREAS, the new government under President Corazon
C. Aquino was installed through a direct exercise of the
power of the Filipino people assisted by units of the New
Armed
Forces
of
the
Philippines;
"WHEREAS, the heroic action of the people was done in
defiance of the provisions of the 1973 Constitution, as
amended;
"WHEREFORE, I, Corazon C. Aquino, President of the
Philippines, by virtue of the powers vested in me by the
sovereign mandate of the people, do hereby promulgate the
following
Provisional
Constitution."25cralaw:red
These summarize the Aquino governments position that its
mandate is taken from "a direct exercise of the power of the
Filipino
people."
26
Discussions and opinions of legal experts also proclaim that
the Aquino government was "revolutionary in the sense that
it came into existence in defiance of the existing legal

processes" 27 and that it was a revolutionary government
"instituted by the direct action of the people and in opposition
to the authoritarian values and practices of the overthrown
government."
28
A question which naturally comes to mind is whether the
then existing legal order was overthrown by the Aquino
government. "A legal order is the authoritative code of a
polity. Such code consists of all the rules found in the
enactments of the organs of the polity. Where the state
operates under a written constitution, its organs may be
readily determined from a reading of its provisions. Once
such organs are ascertained, it becomes an easy matter to
locate their enactments. The rules in such enactments, along
with those in the constitution, comprise the legal order of that
constitutional state." 29 It is assumed that the legal order
remains as a "culture system" of the polity as long as the
latter endures 30 and that a point may be reached, however,
where the legal system ceases to be operative as a whole
for it is no longer obeyed by the population nor enforced by
the
officials.
31
It is widely known that Mrs. Aquinos rise to the presidency
was not due to constitutional processes; in fact, it was
achieved in violation of the provisions of the 1973
Constitution as a Batasang Pambansa resolution had earlier
declared Mr. Marcos at the winner in the 1986 presidential
election. 32 Thus it can be said that the organization of Mrs.
Aquinos Government which was met by little resistance and
her control of the state evidenced by the appointment of the
Cabinet and other key officers of the administration, the
departure of the Marcos Cabinet officials, revampt of the
Judiciary and the Military signalled the point where the legal
system then in effect, had ceased to be obeyed by the
Filipino.
The Court holds that the Court of Appeals and Intermediate
Appellate Court existing prior to Executive Order No. 33
phased out as part of the legal system abolished by the
revolution and that the Court of Appeals established under
Executive Order No. 33 was an entirely new court with
appointments thereto having no relation to earlier
appointments to the abolished courts, and that the reference
to precedence in rank contained in the last sentence of Sec.
2, BP Blg. No. 129 as amended by Executive Order No. 33
refers to prospective situations as distinguished from
retroactive
ones.
But even assuming, arguendo, that Executive Order No. 33
did not abolish the precedence or seniority ranking resulting
from previous appointment to the Court of Appeals or
Intermediate Appellate Court existing prior to the 1986
revolution, it is believed that President Aquino as head of
then revolutionary government, could disregard or set aside
such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive
Order No. 33, President Aquino was still exercising the
powers of a revolutionary government, encompassing both
executive and legislative powers, such that she could, if she
so desired, amend, modify or repeal any part of B.P. Blg. 129

or her own Executive Order No. 33. It should also be
remembered that the same situation was still in force when
she issued the 1986 appointments to the Court of Appeals.
In other words, President Aquino, at the time of the issuance
of the 1986 appointments, modified or disregarded the rule
embodied in B.P. Blg. 129 as amended by Executive Order
No. 33, on precedence or seniority in the case of the
petitioner, for reasons known only to her. Since the
appointment extended by the President to the petitioner in
1986 for membership in the new Court of Appeals with its
implicit ranking in the roster of justices, was a valid
appointment anchored on the Presidents exercise of her
then revolutionary powers, it is not for the Court at this time
to
question
or
correct
that
exercise.
ACCORDINGLY, the Court GRANTS the Motion for
Reconsideration and the seniority rankings of members of
the Court of Appeals, including that of the petitioner, at the
time the appointments were made by the President in 1986,
are
recognized
and
upheld.
SO ORDERED.
B. ADOPTION AND EFFECTIVITY OF THE PRESENT
CONSTITUTION
DE LEON v. ESGUERRA
153 S 602 (1987)
SUPREME COURT
Manila
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C.
STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA
ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC
Governor of the Province of Rizal, HON. ROMEO C. DE
LEON, in his capacity as OIC Mayor of the Municipality
of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M.
TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners
seeking to enjoin respondents from replacing them from their
respective positions as Barangay Captain and Barangay
Councilmen of Barangay Dolores, Municipality of Taytay,
Province of Rizal.

As required by the Court, respondents submitted their
Comment on the Petition, and petitioner's their Reply to
respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner
Alfredo M. De Leon was elected Barangay Captain and the
other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose
C. Tolentino, Rogelio J. de la Rosa and Jose M.
Resurreccion, as Barangay Councilmen of Barangay
Dolores, Taytay, Rizal under Batas Pambansa Blg. 222,
otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received
a Memorandum antedated December 1, 1986 but signed by
respondent OIC Governor Benjamin Esguerra on February
8, 1987 designating respondent Florentino G. Magno as
Barangay Captain of Barangay Dolores, Taytay, Rizal. The
designation made by the OIC Governor was "by authority of
the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed
a Memorandum, antedated December 1, 1986 designating
respondents Remigio M. Tigas, Ricardo Z. Lacanienta
Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino
as members of the Barangay Council of the same Barangay
and Municipality.
That the Memoranda had been antedated is evidenced by
the Affidavit of respondent OIC Governor, the pertinent
portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed
as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in
the performance of my duties thereof, I among others, have
signed as I did sign the unnumbered memorandum ordering
the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986
was signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all
concerned the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda
of February 8, 1987 be declared null and void and that
respondents be prohibited from taking over their positions of
Barangay Captain and Barangay Councilmen, respectively.
Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of
office "shall be six (6) years which shall commence on June
7, 1982 and shall continue until their successors shall have

elected and shall have qualified," or up to June 7, 1988. It is
also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the
authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III
of the Provisional Constitution, promulgated on March 25,
1986, which provided:
SECTION 2. All elective and appointive officials and
employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or executive
order or upon the designation or appointment and
qualification of their successors, if such appointment is made
within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend
that the terms of office of elective and appointive officials
were abolished and that petitioners continued in office by
virtue of the aforequoted provision and not because their
term of six years had not yet expired; and that the provision
in the Barangay Election Act fixing the term of office of
Barangay officials to six (6) years must be deemed to have
been repealed for being inconsistent with the aforequoted
provision of the Provisional Constitution.
Examining the said provision, there should be no question
that petitioners, as elective officials under the 1973
Constitution, may continue in office but should vacate their
positions upon the occurrence of any of the events
mentioned. 1
Since the promulgation of the Provisional Constitution, there
has been no proclamation or executive order terminating the
term of elective Barangay officials. Thus, the issue for
resolution is whether or not the designation of respondents
to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC
Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not
December 1,1986 to which it was ante dated, in keeping with
the dictates of justice.
But while February 8, 1987 is ostensibly still within the oneyear deadline, the aforequoted provision in the Provisional
Constitution must be deemed to have been overtaken by
Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all
previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on
February 2, 1987. By that date, therefore, the Provisional
Constitution must be deemed to have been superseded.
Having become inoperative, respondent OIC Governor could

no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of
tenure specially considering that the Barangay Election Act
of 1982 declares it "a policy of the State to guarantee and
promote the autonomy of the barangays to ensure their
fullest development as self-reliant communities. 2 Similarly,
the 1987 Constitution ensures the autonomy of local
governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to
"general supervision" over local governments. 4 Relevantly,
Section 8, Article X of the same 1987 Constitution further
provides in part:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years ...
Until the term of office of barangay officials has been
determined by law, therefore, the term of office of six (6)
years provided for in the Barangay Election Act of
1982 5 should still govern.
Contrary to the stand of respondents, we find nothing
inconsistent between the term of six (6) years for elective
Barangay officials and the 1987 Constitution, and the same
should, therefore, be considered as still operative, pursuant
to Section 3, Article XVIII of the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders,
proclamations letters of instructions, and other executive
issuances not inconsistent, with this Constitution shall
remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent
OIC Governor on February 8, 1987 designating respondents
as the Barangay Captain and Barangay Councilmen,
respectively, of Barangay Dolores, Taytay, Rizal, are both
declared to be of no legal force and effect; and (2) the Writ of
Prohibition is granted enjoining respondents perpetually from
proceeding with the ouster/take-over of petitioners' positions
subject of this Petition. Without costs.
SO ORDERED.
TANADA v TUVERA
G.R. No. L-63915, April 24, 1985
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the
President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacaang Records Office, and FLORENDO
S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of
public concern, a right recognized in Section 6, Article IV of
the 1973 Philippine Constitution, 1 as well as the principle
that laws to be valid and enforceable must be published in
the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the
Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders,
letter of implementation and administrative orders.
The respondents, through the Solicitor General, would have
this case dismissed outright on the ground that petitioners
have no legal personality or standing to bring the instant
petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the
presidential issuances in question 2 said petitioners are
without the requisite legal personality to institute this
mandamus proceeding, they are not being "aggrieved
parties" within the meaning of Section 3, Rule 65 of the
Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and
praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to
do the act required to be done to Protect the rights of the
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the
subject of the petition concerns a public right and its object is
to compel the performance of a public duty, they need not
show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as
the 1910 case of Severino vs. Governor General, 3 this Court

held that while the general rule is that "a writ of mandamus
would be granted to a private individual only in those cases
where he has some private or particular interest to be
subserved, or some particular right to be protected,
independent of that which he holds with the public at large,"
and "it is for the public officers exclusively to apply for the
writ when public rights are to be subserved [Mithchell vs.
Boardmen, 79 M.e., 469]," nevertheless, "when the question
is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at
whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope
Severino, a private individual, as a proper party to the
mandamus proceedings brought to compel the Governor
General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking
for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority
supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to
be enforced. If the general rule in America were otherwise,
we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general
rule to a particular case without keeping in mind the reason
for the rule, because, if under the particular circumstances
the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general
rule insisted upon by counsel for the respondent. The
circumstances which surround this case are different from
those in the United States, inasmuch as if the relator is not a
proper party to these proceedings no other person could be,
as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private
citizen's legal personality in the aforementioned case apply
squarely to the present petition. Clearly, the right sought to
be enforced by petitioners herein is a public right recognized
by no less than the fundamental law of the land. If petitioners
were not allowed to institute this proceeding, it would indeed
be difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the government
officer generally empowered to represent the people, has
entered his appearance for respondents in this case.
Respondents further contend that publication in the Official
Gazette is not a sine qua non requirement for the effectivity
of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the
presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the

Official Gazette is not indispensable for their effectivity. The
point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless
it is otherwise provided, ...
The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of
decisions, 4 this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation
itself does not provide for its effectivity date-for then the date
of publication is material for determining its date of effectivity,
which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into
effect.
Respondents' argument, however, is logically correct only
insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily
reached that said Article 2 does not preclude the requirement
of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1]
all important legisiative acts and resolutions of a public
nature of the, Congress of the Philippines; [2] all executive
and administrative orders and proclamations, except such as
have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as
may be deemed by said courts of sufficient importance to be
so published; [4] such documents or classes of documents
as may be required so to be published by law; and [5] such
documents or classes of documents as the President of the
Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to
be published. ...
The clear object of the above-quoted provision is to give the
general public adequate notice of the various laws which are
to regulate their actions and conduct as citizens. Without
such notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed
upon the President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan
Pambansaand for the diligent ones, ready access to the
legislative recordsno such publicity accompanies the lawmaking process of the President. Thus, without publication,
the people have no means of knowing what presidential

decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of Spain
ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su
potestad. 5
The very first clause of Section I of Commonwealth Act 638
reads: "There shall be published in the Official Gazette ... ."
The word "shall" used therein imposes upon respondent
officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The
law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must
be included or excluded from such publication.
The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose
a burden or. the people, such as tax and revenue measures,
fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as
administrative and executive orders need not be published
on the assumption that they have been circularized to all
concerned. 6
It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land, the
requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository
promulgate and publish the texts of all such decrees, orders
and instructions so that the people may know where to
obtain their official and specific contents.
The Court therefore declares that presidential issuances of
general application, which have not been published, shall
have no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this
decision might have on acts done in reliance of the validity of
those presidential decrees which were published only during
the pendency of this petition, have put the question as to
whether the Court's declaration of invalidity apply to P.D.s
which had been enforced or implemented prior to their
publication. The answer is all too familiar. In similar situations
in the past this Court had taken the pragmatic and realistic
course set forth in Chicot County Drainage District vs. Baxter
Bank 8 to wit:
The courts below have proceeded on the theory that the Act
of Congress, having been found to be unconstitutional, was
not a law; that it was inoperative, conferring no rights and
imposing no duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118 U.S. 425,
442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566.
It is quite clear, however, that such broad statements as to
the effect of a determination of unconstitutionality must be
taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may
have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular
conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public
policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions
are among the most difficult of those which have engaged
the attention of courts, state and federal and it is manifest
from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban 9 sustained the right of a party under the Moratorium
Law, albeit said right had accrued in his favor before said law
was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential
decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot
be justly ignored. The past cannot always be erased by a
new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court,
it appears that of the presidential decrees sought by
petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278,
and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of
these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the
public of the contents of [penal] regulations and make the
said penalties binding on the persons affected thereby. " The
cogency of this holding is apparently recognized by
respondent officials considering the manifestation in their
comment that "the government, as a matter of policy, refrains
from prosecuting violations of criminal laws until the same
shall have been published in the Official Gazette or in some
other publication, even though some criminal laws provide
that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to
publish in the Official Gazette all unpublished presidential

issuances which are of general application, and unless so
published, they shall have no binding force and effect.
3. What is meant by "publication"?

4. Where is the publication to be made?
SO ORDERED.
5. When is the publication to be made?
TANADA v TUVERA
G.R. No. L-63915, December 29, 1986
SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the
President, MELQUIADES P. DE LA CRUZ, ETC., ET
AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding
the disclosure of a number of presidential decrees which
they claimed had not been published as required by law. The
government argued that while publication was necessary as
a rule, it was not so when it was "otherwise provided," as
when the decrees themselves declared that they were to
become effective immediately upon their approval. In the
decision of this case on April 24, 1985, the Court affirmed the
necessity for the publication of some of these decrees,
declaring in the dispositive portion as follows:
WHEREFORE,
the
Court
hereby
orders
respondents to publish in the Official Gazette all
unpublished presidential issuances which are of
general application, and unless so published, they
shall have no binding force and effect.
The petitioners are now before us again, this time to move
for reconsideration/clarification of that decision. 1Specifically,
they ask the following questions:
1. What is meant by "law of public nature" or "general
applicability"?
2. Must a distinction be made between laws of general
applicability and laws which are not?
Resolving their own doubts, the petitioners suggest that

there should be no distinction between laws of general
applicability and those which are not; that publication means
complete publication; and that the publication must be made
forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he
claimed first that the motion was a request for an advisory
opinion and should therefore be dismissed, and, on the
merits, that the clause "unless it is otherwise provided" in
Article 2 of the Civil Code meant that the publication required
therein was not always imperative; that publication, when
necessary, did not have to be made in the Official Gazette;
and that in any case the subject decision was concurred in
only by three justices and consequently not binding. This
elicited a Reply 4 refuting these arguments. Came next the
February Revolution and the Court required the new Solicitor
General to file a Rejoinder in view of the supervening events,
under Rule 3, Section 18, of the Rules of Court. Responding,
he submitted that issuances intended only for the internal
administration of a government agency or for particular
persons did not have to be 'Published; that publication when
necessary must be in full and in the Official Gazette; and
that, however, the decision under reconsideration was not
binding because it was not supported by eight members of
this Court. 5
The subject of contention is Article 2 of the Civil Code
providing as follows:
ART. 2. Laws shall take effect after fifteen days
following the completion of their publication in
the Official Gazette, unless it is otherwise provided.
This Code shall take effect one year after such
publication.
After a careful study of this provision and of the arguments of
the parties, both on the original petition and on the instant
motion, we have come to the conclusion and so hold, that
the clause "unless it is otherwise provided" refers to the date
of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective
immediately upon approval, or on any other date, without its
previous publication.
Publication is indispensable in every case, but the legislature
may in its discretion provide that the usual fifteen-day period
shall be shortened or extended. An example, as pointed out
by the present Chief Justice in his separate concurrence in
the original decision, 6 is the Civil Code which did not
become effective after fifteen days from its publication in the
Official Gazette but "one year after such publication." The

general rule did not apply because it was "otherwise
provided. "
It is not correct to say that under the disputed clause
publication may be dispensed with altogether. The reason. is
that such omission would offend due process insofar as it
would deny the public knowledge of the laws that are
supposed to govern the legislature could validly provide that
a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely
that persons not aware of it would be prejudiced as a result
and they would be so not because of a failure to comply with
but simply because they did not know of its existence,
Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal
measures, like a law on prescription, which must also be
communicated to the persons they may affect before they
can begin to operate.
We note at this point the conclusive presumption that every
person knows the law, which of course presupposes that the
law has been published if the presumption is to have any
legal justification at all. It is no less important to remember
that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially, the
legislative enactments of the government.
The term "laws" should refer to all laws and not only to those
of general application, for strictly speaking all laws relate to
the people in general albeit there are some that do not apply
to them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said
that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The
subject of such law is a matter of public interest which any
member of the body politic may question in the political
forums or, if he is a proper party, even in the courts of justice.
In fact, a law without any bearing on the public would be
invalid as an intrusion of privacy or as class legislation or as
anultra vires act of the legislature. To be valid, the law must
invariably affect the public interest even if it might be directly
applicable only to one individual, or some of the people only,
and t to the public as a whole.
Interpretative regulations and those merely internal in nature,

that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the
performance of their duties.
Accordingly, even the charter of a city must be published
notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of
that place. All presidential decrees must be published,
including even, say, those naming a public place after a
favored individual or exempting him from certain prohibitions
or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret
but to "fill in the details" of the Central Bank Act which that
body is supposed to enforce.
However, no publication is required of the instructions issued
by, say, the Minister of Social Welfare on the case studies to
be made in petitions for adoption or the rules laid down by
the head of a government agency on the assignments or
workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this
rule but by the Local Government Code.
We agree that publication must be in full or it is no
publication at all since its purpose is to inform the public of
the contents of the laws. As correctly pointed out by the
petitioners, the mere mention of the number of the
presidential decree, the title of such decree, its whereabouts
(e.g., "with Secretary Tuvera"), the supposed date of
effectivity, and in a mere supplement of the Official Gazette
cannot satisfy the publication requirement. This is not even
substantial compliance. This was the manner, incidentally, in
which the General Appropriations Act for FY 1975, a
presidential decree undeniably of general applicability and
interest, was "published" by the Marcos administration. 7 The
evident purpose was to withhold rather than disclose
information on this vital law.
We hold therefore that all statutes, including those of local

application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days
after publication unless a different effectivity date is fixed by
the legislature.
Coming now to the original decision, it is true that only four

justices were categorically for publication in the Official
Gazette 8 and that six others felt that publication could be
made elsewhere as long as the people were sufficiently
informed.9 One reserved his vote 10 and another merely
acknowledged the need for due publication without indicating
where it should be made. 11 It is therefore necessary for the
present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision
supported by the necessary vote.
Covered by this rule are presidential decrees and executive

orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated
by the legislature or, at present, directly conferred by the
Constitution. administrative rules and regulations must a also
be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
There is much to be said of the view that the publication

need not be made in the Official Gazette, considering its
erratic releases and limited readership. Undoubtedly,
newspapers of general circulation could better perform the
function of communicating, the laws to the people as such
periodicals are more easily available, have a wider
readership, and come out regularly. The trouble, though, is

that this kind of publication is not the one required or
authorized by existing law. As far as we know, no
amendment has been made of Article 2 of the Civil Code.
The Solicitor General has not pointed to such a law, and we
have no information that it exists. If it does, it obviously has
not yet been published.
At any rate, this Court is not called upon to rule upon the
wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to
the legislature. Our task is merely to interpret and apply the
law as conceived and approved by the political departments
of the government in accordance with the prescribed
procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the
publication of laws must be made in the Official Gazett and
not elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different period
provided by the legislature.
publication, or on another date specified by the legislature, in

accordance with Article 2 of the Civil Code.
SO ORDERED.
III. JUDICIAL ELABORATION OF THE CONSTITUTION
A.
CONSTRUCTION
MANILA PRINCE HOTEL v. GSIS

267 S 408 (1997)
SUPREME COURT
Manila
EN BANC
G.R. No. 122156 February 3, 1997
We also hold that the publication must be made forthwith or

at least as soon as possible, to give effect to the law
pursuant to the said Article 2. There is that possibility, of
course, although not suggested by the parties that a law
could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as
required. This is a matter, however, that we do not need to
examine at this time.
MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL, respondents.
Finally, the claim of the former Solicitor General that the

instant motion is a request for an advisory opinion is
untenable, to say the least, and deserves no further
comment.
BELLOSILLO, J.:
The days of the secret laws and the unpublished decrees are
over. This is once again an open society, with all the acts of
the government subject to public scrutiny and available
always to public cognizance. This has to be so if our country
is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.
Although they have delegated the power of legislation, they
retain the authority to review the work of their delegates and
to ratify or reject it according to their lights, through their
freedom of expression and their right of suffrage. This they
cannot do if the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun
instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to
make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint
parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above
defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official
Gazette, to become effective only after fifteen days from their
The FiIipino
First
Policy enshrined
in
the
1987
Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos, 1 is in
oked by petitioner in its bid to acquire 51% of the shares of
the Manila Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing
legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government
Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government under
Proclamation No. 50 dated 8 December 1986, decided to sell
through public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The winning bidder,
or the eventual "strategic partner," is to provide management
expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability
and performance of the Manila Hotel. 2 In a close bidding
held on 18 September 1995 only two (2) bidders
participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong
Berhad, a Malaysian firm, with ITT-Sheraton as its hotel

operator, which bid for the same number of shares at P44.00
per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by
respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3, 1995)
or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of
contract specified by the Highest Bidder in its strategic plan
for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and
Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are
met:
a. Execution of the necessary contracts with GSIS/MHC not
later than October 23, 1995 (reset to November 3, 1995);
and
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained. 3
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner and the execution of the necessary
contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share
tendered by Renong Berhad. 4 In a subsequent letter dated
10 October 1995 petitioner sent a manager's check issued
by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad . . . 5 which
respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent
GSIS has disregarded the tender of the matching bid and
that the sale of 51% of the MHC may be hastened by
respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus.
On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by

the Court En Banc after it was referred to it by the First
Division. The case was then set for oral arguments with
former Chief Justice Enrique M. Fernando and Fr. Joaquin
G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII,
of the 1987 Constitution and submits that the Manila
Hotel has been identified with the Filipino nation and has
practically become a historical monument which reflects the
vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in
the nobility and sacredness of independence and its power
and capacity to release the full potential of the Filipino
people. To all intents and purposes, it has become a part of
the national patrimony. 6 Petitioner also argues that since
51% of the shares of the MHC carries with it the ownership
of the business of the hotel which is owned by respondent
GSIS, a government-owned and controlled corporation, the
hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares
of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is
part of the national patrimony and its business also
unquestionably part of the national economy petitioner
should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any
reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price
per share. 8
Respondents except. They maintain that: First, Sec. 10,
second par., Art. XII, of the 1987 Constitution is merely a
statement of principle and policy since it is not a selfexecuting
provision
and
requires
implementing
legislation(s) . . . Thus, for the said provision to Operate,
there must be existing laws "to lay down conditions under
which business may be done." 9
Second, granting that this provision is self-executing, Manila
Hotel does not fall under the term national patrimony which
only refers to lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna
and all marine wealth in its territorial sea, and exclusive
marine zone as cited in the first and second paragraphs of
Sec. 2, Art. XII, 1987 Constitution. According to respondents,
while petitioner speaks of the guests who have slept in the
hotel and the events that have transpired therein which make
the hotel historic, these alone do not make the hotel fall
under the patrimonyof the nation. What is more, the mandate
of the Constitution is addressed to the State, not to
respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of
the national patrimony, the constitutional provision invoked is
still inapplicable since what is being sold is only 51% of the
outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51%
of the equity of the MHC cannot be considered part of
the national patrimony. Moreover, if the disposition of the
shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning
and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of
the bidding rules which provides that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders
are willing to match the highest bid in terms of price per
share, is misplaced. Respondents postulate that the privilege
of submitting a matching bid has not yet arisen since it only
takes place if for any reason, the Highest Bidder cannot be
awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares
and the condition giving rise to the exercise of the privilege
to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse
of discretion should fail since respondent GSIS did not
exercise its discretion in a capricious, whimsical manner, and
if ever it did abuse its discretion it was not so patent and
gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law. Similarly,
the petition for mandamus should fail as petitioner has no
clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them
by petitioner.
We now resolve. A constitution is a system of fundamental
laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. 10 It
prescribes the permanent framework of a system of
government, assigns to the different departments their
respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which
all other laws must conform and in accordance with which all
private rights must be determined and all public authority
administered.11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the
legislative or by the executive branch or entered into by
private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is
the fundamental, paramount and supreme law of the nation,
it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of
policies and principles. Their provisions command the
legislature to enact laws and carry out the purposes of the

framers who merely establish an outline of government
providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable
rights of citizens. 12 A provision which lays down a general
principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without
the aid of supplementary or enabling legislation, or that
which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are
fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms,
and there is no language indicating that the subject is
referred to the legislature for action. 13
As against constitutions of the past, modern constitutions
have been generally drafted upon a different principle and
have often become in effect extensive codes of laws
intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly
provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the
fundamental law. 14 This can be cataclysmic. That is why the
prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered
self-executing rather than non-self-executing . . . . Unless the
contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule
would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass
the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the
1987 Constitution is clearly not self-executing, as they quote
from discussions on the floor of the 1986 Constitutional
Commission
MR. RODRIGO. Madam President, I am asking this question
as the Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it
be understood as a preference to qualified Filipinos vis-avis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner
Rodrigo? Is it to remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over
aliens?
concessions covering the national economy and patrimony. A

constitutional provision may be self-executing in one part
and non-self-executing in another. 19
MR. NOLLEDO. Madam President, I think that is understood.

We use the word "QUALIFIED" because the existing laws or
prospective laws will always lay down conditions under
which business may be done. For example, qualifications on
the setting up of other financial structures, et
cetera (emphasis supplied by respondents)
Even the cases cited by respondents holding that certain

constitutional provisions are merely statements of principles
and policies, which are basically not self-executing and only
placed in the Constitution as moral incentives to legislation,
not as judicially enforceable rights are simply not in
point. Basco v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role of
the youth in nation-building 23 the promotion of social
justice, 24 and
the
values
of
education. 25Tolentino
v. Secretary of Finance 26 refers to the constitutional
provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan,
Inc. v. Morato 29 cites
provisions on the promotion of general welfare, 30 the sanctity
of family life, 31 the vital role of the youth in nationbuilding 32 and the promotion of total human liberation and
development. 33A reading of these provisions indeed clearly
shows that they are not judicially enforceable constitutional
rights but merely guidelines for legislation. The very terms of
the provisions manifest that they are only principles upon
which the legislations must be based. Res ipsa loquitur.
MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched
in such a way as not to make it appear that it is non-selfexecuting but simply for purposes of style. But, certainly, the
legislature is not precluded from enacting other further laws
to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor
details may be left to the legislature without impairing the
self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature
may still enact legislation to facilitate the exercise of powers
directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection
of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The
mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing
constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication
that it was not intended to be self-executing. The rule is that
a self-executing provision of the constitution does not
necessarily exhaust legislative power on the subject, but any
legislation must be in harmony with the constitution, further
the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not
necessarily mean that the subject constitutional provision is
not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature
of Sec. 10, second par., of Art. XII is implied from the tenor of
the first and third paragraphs of the same section which
undoubtedly are not self-executing. 18 The argument is
flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage
the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference
to qualified Filipinos in the grant of rights, privileges and
On the other hand, Sec. 10, second par., Art. XII of the of the
1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it
in operation. It is per se judicially enforceable When our
Constitution mandates that [i]n the grant of rights, privileges,
and concessions covering national economy and patrimony,
the State shall give preference to qualified Filipinos, it means
just that qualified Filipinos shall be preferred. And when
our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to
enforce such right notwithstanding the absence of any
legislation on the subject; consequently, if there is no statute
especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and
puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi
remedium.
As regards our national patrimony, a member of the 1986
Constitutional Commission 34 explains
The patrimony of the Nation that should be conserved and
developed refers not only to out rich natural resources but
also to the cultural heritage of out race. It also refers to our
intelligence in arts, sciences and letters. Therefore, we
should develop not only our lands, forests, mines and other
natural resources but also the mental ability or faculty of our
people.
We agree. In its plain and ordinary meaning, the term
patrimony pertains to heritage. 35 When the Constitution
speaks of national patrimony, it refers not only to the natural

resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to
the cultural heritage of the Filipinos.
Manila Hotel has become a landmark a living testimonial
of Philippine heritage. While it was restrictively an American
hotel when it first opened in 1912, it immediately evolved to
be truly Filipino, Formerly a concourse for the elite, it has
since then become the venue of various significant events
which have shaped Philippine history. It was called
the Cultural Center of the 1930's. It was the site of the
festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the
Philippine Government. it plays host to dignitaries and official
visitors who are accorded the traditional Philippine
hospitality. 36
The history of the hotel has been chronicled in the book The
Manila Hotel: The Heart and Memory of a City. 37During
World War II the hotel was converted by the Japanese
Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities,
playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous
international recognitions, an acknowledgment of the Filipino
talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etatwhere an aspirant for vice-president was
"proclaimed" President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute
witness to the triumphs and failures, loves and frustrations of
the Filipinos; its existence is impressed with public interest;
its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and
patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone
who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC
cannot be disassociated from the hotel and the land on
which the hotel edifice stands. Consequently, we cannot
sustain
respondents'
claim
that
theFilipino
First
Policy provision is not applicable since what is being sold is
only 51% of the outstanding shares of the corporation, not
the Hotel building nor the land upon which the building
stands. 38
The argument is pure sophistry. The term qualified
Filipinos as used in Our Constitution also includes
corporations at least 60% of which is owned by Filipinos.
This is very clear from the proceedings of the 1986
Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the

Nolledo amendment. And the amendment would consist in
substituting the words "QUALIFIED FILIPINOS" with the
following: "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL
OR CONTROLLING STOCK IS WHOLLY OWNED BY
SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent
is agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly owned by
Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it
if we say that the preference should only be 100-percent
Filipino.
MR: DAVIDE. I want to get that meaning clear because
"QUALIFIED FILIPINOS" may refer only to individuals and
not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the
amendment be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT
OF
RIGHTS,
PRIVILEGES
AND
CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS." And the word "Filipinos" here, as intended by
the proponents, will include not only individual Filipinos but
also Filipino-controlled entities or entities fully-controlled by
Filipinos. 40
The phrase preference to qualified Filipinos was explained
thus
MR. FOZ. Madam President, I would like to request
Commissioner Nolledo to please restate his amendment so
that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS."

MR FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects
than the Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST,"
it will be "SHALL THE STATE SHALL GlVE
PREFERENCE TO QUALIFIED FILIPINOS. This embodies
the so-called "Filipino First" policy. That means that Filipinos
should be given preference in the grant of concessions,
privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further
clarified by Commissioner Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "ProFilipino" bias in all economic concerns. It is better known as
the FILIPINO FIRST Policy . . . This provision was never
found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference
shall be given to those citizens who can make a viable
contribution to the common good, because of credible
competence and efficiency. It certainly does NOT mandate
the pampering and preferential treatment to Filipino citizens
or organizations that are incompetent or inefficient, since
such an indiscriminate preference would be counter
productive and inimical to the common good.
In the granting of economic rights, privileges, and
concessions, when a choice has to be made between a
"qualified foreigner" end a "qualified Filipino," the latter shall
be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was
so considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent
GSIS in accordance with its own guidelines so that the sole
inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel
industry, or it has significant equity ownership in another
hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila
Hotel. 44
The penchant to try to whittle away the mandate of the

Constitution by arguing that the subject provision is not selfexecutory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional
provision by the government itself is only too
distressing. To adopt such a line of reasoning is to renounce
the duty to ensure faithfulness to the Constitution. For, even
some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own
and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas,
S.J., on constitutional government is apt
The executive department has a constitutional duty to
implement laws, including the Constitution, even before
Congress acts provided that there are discoverable legal
standards for executive action. When the executive acts, it
must be guided by its own understanding of the
constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution
and the laws is not the sole prerogative of Congress. If it
were, the executive would have to ask Congress, or perhaps
the Court, for an interpretation every time the executive is
confronted by a constitutional command. That is not how
constitutional government operates. 45
Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by
itself possesses a separate and distinct personality. This
argument again is at best specious. It is undisputed that the
sale of 51% of the MHC could only be carried out with the
prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr.
Joaquin G. Bernas, S.J., this fact alone makes the sale of
the assets of respondents GSIS and MHC a "state action." In
constitutional jurisprudence, the acts of persons distinct from
the government are considered "state action" covered by the
Constitution (1) when the activity it engages in is a "public
function;" (2) when the government is so significantly
involved with the private actor as to make the government
responsible for his action; and, (3) when the government has
approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent
MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a transaction of
the State and therefore subject to the constitutional
command. 46
When the Constitution addresses the State it refers not only
to the people but also to the government as elements of the
State. After all, government is composed of three (3)
divisions of power legislative, executive and judicial.
Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the
Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered
the higher bid it is not yet the winning bidder. The bidding
rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the
mere tending of the highest bid is not an assurance that the
highest bidder will be declared the winning bidder.
Resultantly, respondents are not bound to make the award
yet, nor are they under obligation to enter into one with the
highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution
the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the
subject constitutional provision is, as it should be, impliedly
written in the bidding rules issued by respondent GSIS, lest
the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their
reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for
any reason the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to other Qualified Bidders
that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price
per
share. 47 Certainly, the constitutional mandate itself is reason
enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or
even the highest, bid. In fact, we cannot conceive of a
stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest
bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy
and patrimony, thereby exceeding the bid of a Filipino, there
is no question that the Filipino will have to be allowed to
match the bid of the foreign entity. And if the Filipino matches
the bid of a foreign firm the award should go to the Filipino. It
must be so if we are to give life and meaning to the Filipino
First Policy provision of the 1987 Constitution. For, while this
may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be
simply disregarded. To ignore it would be to sanction a
perilous skirting of the basic law.
This Court does not discount the apprehension that this
policy may discourage foreign investors. But the Constitution
and laws of the Philippines are understood to be always
open to public scrutiny. These are given factors which
investors must consider when venturing into business in a
foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped

from questioning the sale to Renong Berhad since petitioner
was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos
and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest
bid tendered by the foreign entity. In the case before us,
while petitioner was already preferred at the inception of the
bidding because of the constitutional mandate, petitioner had
not yet matched the bid offered by Renong Berhad. Thus it
did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it
had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioner's matching bid
did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made.
To insist on selling the Manila Hotel to foreigners when there
is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross
errors of judgment, regardless of the consequences to the
Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion
while there is still an opportunity to do so than let the
government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters
for its actions.
Since petitioner has already matched the bid price tendered
by Renong Berhad pursuant to the bidding rules, respondent
GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance
not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to
execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the
bid of the Malaysian firm clearly constitutes grave abuse of
discretion.
The Filipino First Policy is a product of Philippine
nationalism. It is embodied in the 1987 Constitution not
merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court
as the ultimate guardian of the Constitution will never shun,
under any reasonable circumstance, the duty of upholding
the majesty of the Constitution which it is tasked to defend. It
is worth emphasizing that it is not the intention of this Court
to impede and diminish, much less undermine, the influx of
foreign investments. Far from it, the Court encourages and
welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of
the Court on this matter could have not been more
appropriately articulated by Chief Justice Narvasa

As scrupulously as it has tried to observe that it is not its
function to substitute its judgment for that of the legislature or
the executive about the wisdom and feasibility of legislation
economic in nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to economic
progress and development . . . in connection with a
temporary injunction issued by the Court's First Division
against the sale of the Manila Hotel to a Malaysian Firm and
its partner, certain statements were published in a major
daily to the effect that injunction "again demonstrates that the
Philippine legal system can be a major obstacle to doing
business here.
Let it be stated for the record once again that while it is no
business of the Court to intervene in contracts of the kind
referred to or set itself up as the judge of whether they are
viable or attainable, it is its bounden duty to make sure that
they do not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of discretion
amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and illinformed criticism. 48
Privatization of a business asset for purposes of enhancing
its business viability and preventing further losses,
regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay
even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the
Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines
being a democratic and republican state, with sovereignty
residing in the Filipino people and from whom all government
authority emanates. In nationalism, the happiness and
welfare of the people must be the goal. The nation-state can
have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept.
Protection of foreign investments, while laudible, is merely a
policy. It cannot override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not
just any commodity to be sold to the highest bidder solely for
the sake of privatization. We are not talking about an
ordinary piece of property in a commercial district. We are
talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state
function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant
role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a
reflection of the Filipino soul a place with a history of
grandeur; a most historical setting that has played a part in

the shaping of a country. 51
This Court cannot extract rhyme nor reason from the
determined efforts of respondents to sell the historical
landmark this Grand Old Dame of hotels in Asia to a
total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less
than mephistophelian for it is, in whatever manner viewed, a
veritable alienation of a nation's soul for some pieces of
foreign silver. And so we ask: What advantage, which cannot
be equally drawn from a qualified Filipino, can be gained by
the Filipinos Manila Hotel and all that it stands for is
sold to a non-Filipino? How much of national pride will vanish
if the nation's cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be
preserved and realized if the national patrimony is safekept
in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino
First Policy provision of the Philippine Constitution. And this
Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the
nation, will continue to respect and protect the sanctity of the
Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE
HOTEL CORPORATION to purchase the subject 51% of the
shares of the Manila Hotel Corporation at P44.00 per share
and thereafter to execute the necessary clearances and to
do such other acts and deeds as may be necessary for
purpose.
SO ORDERED.
DOMINO v. COMELEC
310 S 546 (1999)
SUPREME COURT
Manila
EN BANC
G.R. No. 134015 July 19, 1999

JUAN DOMINO, petitioner,
vs.
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO,
JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO

SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE
CHIONGBIAN-SOLON, intervenor.
In connection with your letter of even date, we are furnishing

you herewith certified xerox copy of the triplicate copy of
COMMUNITY TAX CERTIFICATE NO. 11132214C in the
name of Juan Domino.
DAVIDE, JR., CJ.:
Furthermore, Community Tax Certificate No. 11132212C of

the same stub was issued to Carlito Engcong on September
5, 1997, while Certificate No. 11132213C was also issued to
Mr. Juan Domino but was cancelled and serial no.
11132215C was issued in the name of Marianita Letigio on
September 8, 1997.
Challenged in this case for certiorari with a prayer for

preliminary injunction are the Resolution of 6 May 1998 1 of
the Second Division of the Commission on Elections
(hereafter COMELEC), declaring petitioner Juan Domino
(hereafter DOMINO) disqualified as candidate for
representative of the Lone Legislative District of the Province
of Sarangani in the 11 May 1998 elections, and the Decision
of 29 May 1998 2 of the COMELEC en banc denying
DOMINO's motion for reconsideration.
The antecedents are not disputed.1wphi1.nt
On 25 March 1998, DOMINO filed his certificate of
candidacy for the position of Representative of the Lone
Legislative District of the Province of Sarangani indicating in
item nine (9) of his certificate that he had resided in the
constituency where he seeks to be elected for one (1) year
and two (2) months immediately preceding the election. 3
On 30 March 1998, private respondents Narciso Ra. Grafilo,
Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and
Dionisio P. Lim, Sr., fied with the COMELEC a Petition to
Deny Due Course to or Cancel Certificate of Candidacy,
which was docketed as SPA No. 98-022 and assigned to the
Second Division of the COMELEC. Private respondents
alleged that DOMINO, contrary to his declaration in the
certificate of candidacy, is not a resident, much less a
registered voter, of the province of Sarangani where he
seeks election. To substantiate their allegations, private
respondents presented the following evidence:
1. Annex "A" the Certificate of Candidacy of respondent
for the position of Congressman of the Lone District of the
Province of Sarangani filed with the Office of the Provincial
Election Supervisor of Sarangani on March 25, 1998, where
in item 4 thereof he wrote his date of birth as December 5,
1953; in item 9, he claims he have resided in the
constituency where he seeks election for one (1) year and
two (2) months; and, in item 10, that he is registered voter of
Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani;
2. Annex "B" Voter's Registration Record with SN
31326504 dated June 22, 1997 indicating respondent's
registration at Precinct No. 4400-A, Old Balara, Quezon City;
3. Annex "C" Respondent's Community Tax Certificate No.
11132214C dated January 15, 1997;
4. Annex "D" Certified true copy of the letter of Herson D.
Dema-ala, Deputy Provincial & Municipal Treasurer of
Alabel, Sarangani, dated February 26, 1998, addressed to
Mr. Conrado G. Butil, which reads:
5. Annex "E" The triplicate copy of the Community Tax

Certificate No. 11132214C in the name of Juan Domino
dated September 5, 1997;
6. Annex "F" Copy of the letter of Provincial Treasurer
Lourdes P. Riego dated March 2, 1998 addressed to Mr.
Herson D. Dema-ala, Deputy Provincial Treasurer and
Municipal Treasurer of Alabel, Sarangani, which states:
For easy reference, kindly turn-over to the undersigned for
safekeeping, the stub of Community Tax Certificate
containing Nos. 11132201C-11132250C issued to you on
June 13, 1997 and paid under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian.
7. Annex "G" Certificate of Candidacy of respondent for
the position of Congressman in the 3rd District of Quezon
City for the 1995 elections filed with the Office of the
Regional Election Director, National Capital Region, on
March 17, 1995, where, in item 4 thereof, he wrote his birth
date as December 22, 1953; in item 8 thereof his "residence
in the constituency where I seek to be elected immediately
preceding the election" as 3 years and 5 months; and, in
item 9, that he is a registered voter of Precinct No. 182,
Barangay Balara, Quezon City;
8. Annex "H" a copy of the APPLICATION FOR
TRANSFER OF REGISTRATION RECORDS DUE TO
CHANGE OF RESIDENCE of respondent dated August 30,
1997 addressed to and received by Election Officer Mantil
Alim, Alabel, Sarangani, on September 22, 1997, stating
among others, that "[T]he undersigned's previous residence
is at 24 Bonifacio Street, Ayala Heights, Quezon City, III
District, Quezon City; wherein he is a registered voter" and
"that for business and residence purposes, the undersigned
has transferred and conducts his business and reside at
Barangay Poblacion, Alabel, Province of Sarangani prior to
this application;"
9. Annex "I" Copy of the SWORN APPLICATION FOR OF
CANCELLATION OF THE VOTER'S [TRANSFER OF]
PREVIOUS REGISTRATION of respondent subscribed and
sworn to on 22 October 1997 before Election Officer Mantil
Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied
with the one-year residence requirement and that he has

been residing in Sarangani since January 1997. In support of
the said contention, DOMINO presented before the
COMELEC the following exhibits, to wit:
1. Annex "1" Copy of the Contract of Lease between Nora
Dacaldacal as Lessor and Administrator of the properties of
deceased spouses Maximo and Remedios Dacaldacal and
respondent as Lessee executed on January 15, 1997,
subscribed and sworn to before Notary Public Johnny P.
Landero;
2. Annex "2" Copy of the Extra-Judicial Settlement of
Estate with Absolute Deed of sale executed by and between
the heirs of deceased spouses Maximo and Remedios
Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie
and the respondent on November 4, 1997, subscribed and
sworn to before Notary Public Jose A. Alegario;
3. Annex "3" True Carbon Xerox copy of the Decision
dated January 19, 1998, of the Metropolitan Trial Court of
Metro Manila, Branch 35, Quezon City, in Election Case NO.
725 captioned as "In the Matter of the Petition for the
Exclusion from the List of voters of Precinct No. 4400-A Brgy.
Old Balara, Quezon City, Spouses Juan and Zorayda
Domino, Petitioners, -versus- Elmer M. Kayanan, Election
Officer, Quezon City, District III, and the Board of Election
Inspectors of Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which reads:
1. Declaring the registration of petitioners as voters of
Precinct No. 4400-A, Barangay Old Balara, in District III
Quezon City as completely erroneous as petitioners were no
longer residents of Quezon City but of Alabel, Sarangani
where they have been residing since December 1996;
2. Declaring this erroneous registration of petitioners in
Quezon City as done in good faith due to an honest mistake
caused by circumstances beyond their control and without
any fault of petitioners;
3. Approving the transfer of registration of voters of
petitioners from Precint No. 4400-A of Barangay Old Balara,
Quezon City to Precinct No. 14A1 of Barangay Poblacion of
Alabel, Sarangani; and
4. Ordering the respondents to immediately transfer and
forward all the election/voter's registration records of the
petitioners in Quezon City to the Election Officer, the Election
Registration Board and other Comelec Offices of Alabel,
Sarangani where the petitioners are obviously qualified to
excercise their respective rights of suffrage.
4. Annex "4" Copy of the Application for Transfer of
Registration Records due to Change of Residence
addressed to Mantil Alim, COMELEC Registrar, Alabel,
Sarangani, dated August 30, 1997.
5. Annex "5" Certified True Copy of the Notice of Approval
of Application, the roster of applications for registration
approved by the Election Registration Board on October 20,
1997, showing the spouses Juan and Zorayda Bailon

Domino listed as numbers 111 and 112 both under Precinct
No. 14A1, the last two names in the slate indicated as
transferees without VRR numbers and their application dated
August 30, 1997 and September 30, 1997, respectively.
6. Annex "6" same as Annex "5"
7. Annex "6-a" Copy of the Sworn Application for
Cancellation of Voter's Previous Registration (Annex "I",
Petition);
8. Annex "7" Copy of claim card in the name of
respondent showing his VRR No. 31326504 dated October
20, 1997 as a registered voter of Precinct No. 14A1,
Barangay Poblacion, Alabel, Sarangani;
9. Annex "7-a" Certification dated April 16, 1998, issued
by Atty. Elmer M. Kayanan, Election Officer IV, District III,
Quezon City, which reads:
This is to certify that the spouses JUAN and ZORAYDA
DOMINO are no longer registered voters of District III,
Quezon City. Their registration records (VRR) were
transferred and are now in the possession of the Election
Officer of Alabel, Sarangani.
This certification is being issued upon the request of Mr.
JUAN DOMINO.
10. Annex "8" Affidavit of Nora Dacaldacal and Maria
Lourdes Dacaldacal stating the circumstances and incidents
detailing their alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the
uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes,
Coraminda Lomibao and Elena V. Piodos subscribed and
sworn to before Notary Public Bonifacio F. Doria, Jr., on April
18, 1998, embodying their alleged personal knowledge of
respondent's residency in Alabel, Sarangani;
12. Annex "8-e" A certification dated April 20, 1998,
subscribed and sworn to before Notary Public Bonifacio,
containing a listing of the names of fifty-five (55) residents of
Alabel, Sarangani, declaring and certifying under oath that
they personally know the respondent as a permanent
resident of Alabel, Sarangani since January 1997 up to
present;
13. Annexes "9", "9-a" and "9-b" Copies of Individual
Income Tax Return for the year 1997, BIR form 2316 and W2, respectively, of respondent; and,
14. Annex "10" The affidavit of respondent reciting the
chronology of events and circumstances leading to his
relocation to the Municipality of Alabel, Sarangani,
appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G"
with sub-markings "G-1" and "G-2" and "H" his CTC No.
111`32214C dated September 5, 1997, which are the same

as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with submarkings "9-a" and "9-b" except Annex "H". 5
On 6 May 1998, the COMELEC 2nd Division promulgated a
resolution declaring DOMINO disqualified as candidate for
the position of representative of the lone district of Sarangani
for lack of the one-year residence requirement and likewise
ordered the cancellation of his certificate of candidacy, on the
basis of the following findings:
What militates against respondent's claim that he has met
the residency requirement for the position sought is his own
Voter's Registration Record No. 31326504 dated June 22,
1997 [Annex "B", Petition] and his address indicated as 24
Bonifacio St., Ayala Heights, Old Balara, Quezon City. This
evidence, standing alone, negates all his protestations that
he established residence at Barangay Poblacion, Alabel,
Sarangani, as early as January 1997. It is highly improbable,
nay incredible, for respondent who previously ran for the
same position in the 3rd Legislative District of Quezon City
during the elections of 1995 to unwittingly forget the
residency requirement for the office sought.
Counting, therefore, from the day after June 22, 1997 when
respondent registered at Precinct No. 4400-A, up to and until
the day of the elections on May 11, 1998, respondent clearly
lacks the one (1) year residency requirement provided for
candidates for Member of the House of Representatives
under Section 6, Article VI of the Constitution.
All told, petitioner's evidence conspire to attest to
respondent's lack of residence in the constituency where he
seeks election and while it may be conceded that he is a
registered voter as contemplated under Section 12 of R.A.
8189, he lacks the qualification to run for the position of
Congressman for the Lone District of the Province of
Sarangani. 6
On 11 May 1998, the day of the election, the COMELEC
issued Supplemental Omnibus Resolution No. 3046,
ordering that the votes cast for DOMINO be counted but to
suspend the proclamation if winning, considering that the
Resolution disqualifying him as candidate had not yet
become final and executory. 7
The result of the election, per Statement of Votes certified by
the Chairman of the Provincial Board of Canvassers, 8 shows
that DOMINO garnered the highest number of votes over his
opponents for the position of Congressman of the Province
of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration
of the Resolution dated 6 May 1998, which was denied by
the COMELEC en banc in its decision dated 29 May 1998.
Hence, the present Petition for Certiorari with prayer for
Preliminary Mandatory Injunction alleging, in the main, that
the COMELEC committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled that
he did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance

of Temporary Restraining Order, the Court directed the
parties to maintain the status quo prevailing at the time of the
filing of the instant petition. 9
On 15 September 1998, Lucille L. Chiongbian-Solon,
(hereafter INTERVENOR), the candidate receiving the
second highest number of votes, was allowed by the Court to
Intervene. 10 INTERVENOR in her Motion for Leave to
Intervene and in her Comment in Intervention 11 is asking the
Court to uphold the disqualification of petitioner Juan Domino
and to proclaim her as the duly elected representative of
Sarangani in the 11 May 1998 elections.
Before us DOMINO raised the following issues for resolution,
to wit:
a. Whether or not the judgment of the Metropolitan Trial
Court of Quezon City declaring petitioner as resident of
Sarangani and not of Quezon City is final, conclusive and
binding upon the whole world, including the Commission on
Elections.
b. Whether or not petitioner herein has resided in the subject
congressional district for at least one (1) year immediately
preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction
over the petition a quo for the disqualification of petitioner. 12
The first issue.
The contention of DOMINO that the decision of the
Metropolitan Trial Court of Quezon City in the exclusion
proceedings declaring him a resident of the Province of
Sarangani and not of Quezon City is final and conclusive
upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art.
IX of the Omnibus Election Code, over a petition to deny due
course to or cancel certificate of candidacy. In the exercise of
the said jurisdiction, it is within the competence of the
COMELEC to determine whether false representation as to
material facts was made in the certificate of candidacy, that
will include, among others, the residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon
City in the exclusion proceedings as to the right of DOMINO
to be included or excluded from the list of voters in the
precinct within its territorial jurisdicton, does not preclude the
COMELEC, in the determination of DOMINO's qualification
as a candidate, to pass upon the issue of compliance with
the residency requirement.
The proceedings for the exclusion or inclusion of voters in
the list of voters are summary in character. Thus, the factual
findings of the trial court and its resultant conclusions in the
exclusion proceedings on matters other than the right to vote
in the precinct within its territorial jurisdiction are not

conclusive upon the COMELEC. Although the court in
inclusion or exclusion proceedings may pass upon any
question necessary to decide the issue raised including the
questions of citizenship and residence of the challenged
voter, the authority to order the inclusion in or exclusion from
the list of voters necessarily caries with it the power to
inquire into and settle all matters essential to the exercise of
said authority. However, except for the right to remain in the
list of voters or for being excluded therefrom for the particular
election in relation to which the proceedings had been held,
a decision in an exclusion or inclusion proceeding, even if
final and unappealable, does not acquire the nature of res
judicata. 13 In this sense, it does not operate as a bar to any
future action that a party may take concerning the subject
passed upon in the proceeding. 14 Thus, a decision in an
exclusion proceeding would neither be conclusive on the
voter's political status, nor bar subsequent proceedings on
his right to be registered as a voter in any other election. 15
Thus, in Tan Cohon v. Election Registrar 16 we ruled that:
. . . It is made clear that even as it is here held that the order
of the City Court in question has become final, the same
does not constitute res adjudicata as to any of the matters
therein contained. It is ridiculous to suppose that such an
important and intricate matter of citizenship may be passed
upon and determined with finality in such a summary and
peremptory proceeding as that of inclusion and exclusion of
persons in the registry list of voters. Even if the City Court
had granted appellant's petition for inclusion in the
permanent list of voters on the allegation that she is a
Filipino citizen qualified to vote, her alleged Filipino
citizenship would still have been left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its
18 January decision exceeded its jurisdiction when it
declared DOMINO a resident of the Province of Sarangani,
approved and ordered the transfer of his voter's registration
from Precinct No. 4400-A of Barangay Old Balara, Quezon
City to precinct 14A1 of Barangay Poblacion, Alabel,
Sarangani. It is not within the competence of the trial court,
in an exclusion proceedings, to declare the challenged voter
a resident of another municipality. The jurisdiction of the
lower court over exclusion cases is limited only to
determining the right of voter to remain in the list of voters or
to declare that the challenged voter is not qualified to vote in
the precint in which he is registered, specifying the ground of
the voter's disqualification. The trial court has no power to
order the change or transfer of registration from one place of
residence to another for it is the function of the election
Registration Board as provided under Section 12 of R.A. No.
8189. 17 The only effect of the decision of the lower court
excluding the challenged voter from the list of voters, is for
the Election Registration Board, upon receipt of the final
decision, to remove the voter's registration record from the
corresponding book of voters, enter the order of exclusion
therein, and thereafter place the record in the inactive file. 18
Finally, the application of the rule on res judicata is
unavailing. Identity of parties, subject matter and cause of
action are indispensable requirements for the application of

said doctrine. Neither herein Private Respondents nor
INTERVENOR, is a party in the exclusion proceedings. The
Petition for Exclusion was filed by DOMINDO himself and his
wife, praying that he and his wife be excluded from the
Voter's List on the ground of erroneous registration while the
Petition to Deny Due Course to or Cancel Certificate of
Candidacy was filed by private respondents against
DOMINO for alleged false representation in his certificate of
candidacy. For the decision to be a basis for the dismissal by
reason of res judicata, it is essential that there must be
between the first and the second action identity of parties,
identity of subject matter and identity of causes of action. 19 In
the present case, the aforesaid essential requisites are not
present. In the case of Nuval v. Guray, et al., 20 the Supreme
Court in resolving a similar issue ruled that:
The question to be solved under the first assignment of error
is whether or not the judgment rendered in the case of the
petition for the exclusion of Norberto Guray's name from the
election list of Luna, isres judicata, so as to prevent the
institution and prosecution of an action in quo warranto,
which is now before us.
The procedure prescribed by section 437 of the
Administrative Code, as amended by Act No. 3387, is of a
summary character and the judgment rendered therein is not
appealable except when the petition is tried before the
justice of the peace of the capital or the circuit judge, in
which case it may be appealed to the judge of first instance,
with whom said two lower judges have concurrent
jurisdiction.
The petition for exclusion was presented by Gregorio Nuval
in his dual capacity as qualified voter of the municipality of
Luna, and as a duly registered candidate for the office of
president of said municipality, against Norberto Guray as a
registered voter in the election list of said municipality. The
present proceeding of quo warranto was interposed by
Gregorio Nuval in his capacity as a registered candidate
voted for the office of municipal president of Luna, against
Norberto Guray, as an elected candidate for the same office.
Therefore, there is no identity of parties in the two cases,
since it is not enough that there be an identity of persons, but
there must be an identity of capacities in which said persons
litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of
Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the
litigation, or the litigious matter was the exclusion of Norberto
Guray as a voter from the election list of the municipality of
Luna, while in the present que warranto proceeding, the
object of the litigation, or the litigious matter is his exclusion
or expulsion from the office to which he has been elected.
Neither does there exist, then, any identity in the object of
the litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action
was that Norberto Guray had not the six months' legal
residence in the municipality of Luna to be a qualified voter

thereof, while in the present proceeding of quo warranto, the
cause of action is that Norberto Guray has not the one year's
legal residence required for eligibility to the office of
municipal president of Luna. Neither does there exist
therefore, identity of causes of action.
In order that res judicata may exist the following are
necessary: (a) identity of parties; (b) identity of things; and
(c) identity of issues (Aquino v. Director of Lands, 39 Phil.
850). And as in the case of the petition for excluision and in
the present quo warranto proceeding, as there is no identity
of parties, or of things or litigious matter, or of issues or
causes of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at
least one year immediately preceding the 11 May 1998
election as stated in his certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used in
the law prescribing the qualifications for suffrage and for
elective office, means the same thing as "domicile," which
imports not only an intention to reside in a fixed place but
also personal presence in that place, coupled with conduct
indicative of such intention. 21 "Domicile" denotes a fixed
permanent residence to which, whenever absent for
business, pleasure, or some other reasons, one intends to
return.22 "Domicile" is a question of intention and
circumstances. In the consideration of circumstances, three
rules must be borne in mind, namely: (1) that a man must
have a residence or domicile somewhere; (2) when once
established it remains until a new one is acquired; and (3) a
man can have but one residence or domicile at a time. 23
Records show that petitioner's domicile of origin was
Candon,
Ilocos
Sur 24 and that sometime in 1991, he acquired a new
domicile of choice at 24 Bonifacio St. Ayala Heights, Old
Balara, Quezon City, as shown by his certificate of candidacy
for the position of representative of the 3rd District of Quezon
City in the May 1995 election. Petitioner is now claiming that
he had effectively abandoned his "residence" in Quezon City
and has established a new "domicile" of choice at the
Province of Sarangani.
A person's "domicile" once established is considered to
continue and will not be deemed lost until a new one is
established. 25 To successfully effect a change of domicile
one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and
definite
acts
which
correspond
with
the
purpose. 26 In
other
words,
there
must
basically
be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for
an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new
domicile must be actual. 27
It is the contention of petitioner that his actual physical
presence in Alabel, Sarangani since December 1996 was
sufficiently established by the lease of a house and lot
located therein in January 1997 and by the affidavits and
certifications under oath of the residents of that place that
they have seen petitioner and his family residing in their
locality.
While this may be so, actual and physical is not in itself
sufficient to show that from said date he had transferred his
residence in that place. To establish a new domicile of
choice, personal presence in the place must be coupled with
conduct indicative of that intention. While "residence" simply
requires bodily presence in a given place, "domicile" requires
not only such bodily presence in that place but also a
declared and probable intent to make it one's fixed and
permanent place of abode, one's home. 28
As a general rule, the principal elements of domicile,
physical presence in the locality involved and intention to
adopt it as a domicile, must concur in order to establish a
new domicile. No change of domicile will result if either of
these elements is absent. Intention to acquire a domicile
without actual residence in the locality does not result in
acquisition of domicile, nor does the fact of physical
presence without intention. 29
The lease contract entered into sometime in January 1997,
does not adequately support a change of domicile. The lease
contract may be indicative of DOMINO's intention to reside in
Sarangani but it does not engender the kind of permanency
required to prove abandonment of one's original domicile.
The mere absence of individual from his permanent
residence, no matter how long, without the intention to
abandon it does not result in loss or change of
domicile. 30 Thus the date of the contract of lease of a house
and lot located in the province of Sarangani, i.e., 15 January
1997, cannot be used, in the absence of other
circumstances, as the reckoning period of the one-year
residence requirement.
Further, Domino's lack of intention to abandon his residence
in Quezon City is further strengthened by his act of
registering as voter in one of the precincts in Quezon City.
While voting is not conclusive of residence, it does give rise
to a strong presumption of residence especially in this case
where DOMINO registered in his former barangay.
Exercising the right of election franchise is a deliberate
public assertion of the fact of residence, and is said to have
decided preponderance in a doubtful case upon the place
the elector claims as, or believes to be, his residence. 31 The
fact that a party continously voted in a particular locality is a
strong factor in assisting to determine the status of his
domicile. 32
His claim that his registration in Quezon City was erroneous
and was caused by events over which he had no control

cannot be sustained. The general registration of voters for
purposes of the May 1998 elections was scheduled for two
(2) consecutive weekends, viz.: June 14, 15, 21, and 22. 33
While, Domino's intention to establish residence in
Sarangani can be gleaned from the fact that be bought the
house he was renting on November 4, 1997, that he sought
cancellation of his previous registration in Qezon City on 22
October 1997, 34 and that he applied for transfer of
registration from Quezon City to Sarangani by reason of
change of residence on 30 August 1997, 35 DOMINO still falls
short of the one year residency requirement under the
Constitution.
In showing compliance with the residency requirement, both
intent and actual presence in the district one intends to
represent must satisfy the length of time prescribed by the
fundamental law. 36 Domino's failure to do so rendered him
ineligible and his election to office null and void. 37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction
in the present petition is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art.
IX of the Omnibus Election Code, has jurisdiction over a
petition to deny due course to or cancel certificate of
candidacy. Such jurisdiction continues even after election, if
for any reason no final judgment of disqualification is
rendered before the election, and the candidate facing
disqualification is voted for and receives the highest number
of votes 38 and provided further that the winning candidate
has not been proclaimed or has taken his oath of office. 39
It has been repeatedly held in a number of cases, that the
House of Representatives Electoral Tribunal's sole and
exclusive jurisdiction over all contests relating to the election,
returns and qualifications of members of Congress as
provided under Section 17 of Article VI of the Constitution
begins only after a candidate has become a member of the
House of Representatives. 40
The fact of obtaining the highest number of votes in an
election does not automatically vest the position in the
winning candidate. 41 A candidate must be proclaimed and
must have taken his oath of office before he can be
considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as
Congressman-elect of the Lone Congressional District of the
Province of Sarangani by reason of a Supplemental
Omnibus Resolution issued by the COMELEC on the day of
the election ordering the suspension of DOMINO's
proclamation should he obtain the winning number of votes.
This resolution was issued by the COMELEC in view of the
non-finality of its 6 May 1998 resolution disqualifying
DOMINO as candidate for the position.
Cosidering that DOMINO has not been proclaimed as

Congressman-elect in the Lone Congressional District of the
Province of Sarangani he cannot be deemed a member of
the House of Representatives. Hence, it is the COMELEC
and not the Electoral Tribunal which has jurisdiction over the
issue of his ineligibility as a candidate. 42
Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate for the
position of representative of the province of Sarangani, may
INTERVENOR, as the candidate who received the next
highest number of votes, be proclaimed as the winning
candidate?
It is now settled doctrine that the candidate who obtains the
second highest number of votes may not be proclaimed
winner in case the winning candidate is disqualified. 43 In
every election, the people's choice is the paramount
consideration and their expressed will must, at all times, be
given effect. When the majority speaks and elects into office
a candidate by giving the highest number of votes cast in the
election for that office, no one can be declared elected in his
place. 44
It would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate
who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared
through their ballots that they do not choose him. 45 To
simplistically assume that the second placer would have
received the other votes would be to substitute our judgment
for the mind of the voters. He could not be considered the
first among qualified candidates because in a field which
excludes the qualified candidate, the conditions would have
substantially changed. 46
Sound policy dictates that public elective offices are filled by
those who have received the highest number of votes cast in
the election for that office, and it is fundamental idea in all
republican forms of government that no one can be declared
elected and no measure can be declared carried unless he
or it receives a majority or plurality of the legal votes cast in
the election. 47
The effect of a decision declaring a person ineligible to hold
an office is only that the election fails entirely, that the wreath
of victory cannot be transferred 48 from the disqualified winner
to the repudiated loser because the law then as now only
authorizes a declaration of election in favor of the person
who has obtained a plurality of votes 49 and does not entitle
the candidate receiving the next highest number of votes to
be declared elected. In such case, the electors have failed to
make a choice and the election is a nullity. 50 To allow the
defeated and repudiated candidate to take over the elective
position despite his rejection by the electorate is to
disenfranchise the electorate without any fault on their part
and to undermine the importance and meaning of democracy
and the people's right to elect officials of their choice. 51

INTERVENOR's plea that the votes cast in favor of DOMINO
be considered stray votes cannot be sustained.
INTERVENOR's reliance on the opinion made in the Labo,
Jr. case 52 to wit: if the electorate, fully aware in fact and in
law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety, would nevertheless
cast their votes in favor of the ineligible candidate, the
electorate may be said to have waived the validity and
efficacy of their votes by notoriously misapplying their
franchise or throwing away their votes, in which case, the
eligible candidate obtaining the next higher number of votes
may be deemed elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not
notoriously known by the public as an ineligible candidate.
Although the resolution declaring him ineligible as candidate
was rendered before the election, however, the same is not
yet final and executory. In fact, it was no less than the
COMELEC in its Supplemental Omnibus Resolution No.
3046 that allowed DOMINO to be voted for the office and
ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained
finality. Thus the votes cast for DOMINO are presumed to
have been cast in the sincere belief that he was a qualified
candidate, without any intention to misapply their franchise.
Thus, said votes can not be treated as stray, void, or
meaningless. 53
WHEREFORE, the instant petition is DISMISSED. The
resolution dated 6 May 1998 of the COMELEC 2nd Division
and the decision dated 29 May 1998 of the COMELEC En
Banc, are hereby AFFIRMED.1wphi1.nt
SO ORDERED.
PAMATONG v. COMELEC
427 S 96 (2004)

SUPREME COURT
Manila
EN BANC
G.R. No. 161872
Respondent Commission on Elections (COMELEC) refused

to give due course to petitioners Certificate of Candidacy in
its Resolution No. 6558 dated January 17, 2004. The
decision, however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted to
include petitioner as they believed he had parties or
movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration
of Resolution
No.
6558. Petitioners Motion
for
Reconsideration was docketed as SPP (MP) No. 04-001.
The COMELEC, acting on petitioners Motion for
Reconsideration and on similar motions filed by other
aspirants for national elective positions, denied the same
under the aegis of Omnibus Resolution No. 6604 dated
February 11, 2004. The COMELEC declared petitioner and
thirty-five (35) others nuisance candidates who could not
wage a nationwide campaign and/or are not nominated by a
political party or are not supported by a registered political
party with a national constituency. Commissioner Sadain
maintained his vote for petitioner. By then, Commissioner
Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to
reverse the resolutions which were allegedly rendered in
violation of his right to "equal access to opportunities for
public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates
only to those who can afford to wage a nationwide campaign
and/or are nominated by political parties. In so doing,
petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral process and limited
the power of the sovereign people to choose their leaders.
The COMELEC supposedly erred in disqualifying him since
he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of
waging a national campaign since he has numerous national
organizations under his leadership, he also has the capacity
to wage an international campaign since he has practiced
law in other countries, and he has a platform of government.
Petitioner likewise attacks the validity of the form for
theCertificate of Candidacy prepared by the COMELEC.
Petitioner claims that the form does not provide clear and
reasonable guidelines for determining the qualifications of
candidates since it does not ask for the candidates bio-data
and his program of government.
April 13, 2004

First, the constitutional and legal dimensions involved.
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of
Candidacy for President on December 17, 2003.
Implicit in the petitioners invocation of the constitutional

provision ensuring "equal access to opportunities for public
office" is the claim that there is a constitutional right to run for
or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a
privilege subject to limitations imposed by law. Section 26,
Article II of the Constitution neither bestows such a right nor
elevates the privilege to the level of an enforceable right.
There is nothing in the plain language of the provision which

suggests such a thrust or justifies an interpretation of the
sort.
foundation from which innately unenforceable rights may be

sourced.
The "equal access" provision is a subsumed part of Article II

of the Constitution, entitled "Declaration of Principles and
State Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible
reason for according a different treatment to the "equal
access" provision. Like the rest of the policies enumerated in
Article II, the provision does not contain any judicially
enforceable constitutional right but merely specifies a
guideline for legislative or executive action.3 The disregard of
the provision does not give rise to any cause of action before
the courts.4
As earlier noted, the privilege of equal access to

opportunities to public office may be subjected to limitations.
Some valid limitations specifically on the privilege to seek
elective office are found in the provisions 9 of the Omnibus
Election Code on "Nuisance Candidates" and COMELEC
Resolution No. 645210 dated December 10, 2002 outlining
the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel aCertificate of
Candidacy.
An inquiry into the intent of the framers 5 produces the same

determination that the provision is not self-executory. The
original wording of the present Section 26, Article II had read,
"The State shall broaden opportunities to public office and
prohibit public dynasties."6 Commissioner (now Chief
Justice) Hilario Davide, Jr. successfully brought forth an
amendment that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the word
"office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL
ACCESS TO" because what is important would be
equal access to the opportunity. If you broaden, it
would necessarily mean that the government
would be mandated to create as many offices as
are possible to accommodate as many people
as are also possible. That is the meaning of
broadening opportunities to public service. So, in
order that we should not mandate the State to
make the government the number one employer
and to limit offices only to what may be
necessary and expedient yet offering equal
opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State
to enact positive measures that would accommodate as
many people as possible into public office. The approval of
the "Davide amendment" indicates the design of the framers
to cast the provision as simply enunciatory of a desired
policy objective and not reflective of the imposition of a clear
State burden.
Moreover, the provision as written leaves much to be desired
if it is to be regarded as the source of positive rights. It is
difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not
properly defined. Broadly written, the myriad of claims that
can be subsumed under this rubric appear to be entirely
open-ended.8 Words and phrases such as "equal access,"
"opportunities," and "public service" are susceptible to
countless
interpretations owing to their
inherent
impreciseness. Certainly, it was not the intention of the
framers to inflict on the people an operative but amorphous
As long as the limitations apply to everybody equally without

discrimination, however, the equal access clause is not
violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any
one who is minded to file a certificate of candidacy. In the
case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.
Significantly,
petitioner
does
not
challenge
the
constitutionality or validity of Section 69 of the Omnibus
Election Code and COMELEC Resolution No. 6452 dated 10
December 2003. Thus, their presumed validity stands and
has to be accorded due weight.
Clearly, therefore, petitioners reliance on the equal access
clause in Section 26, Article II of the Constitution is
misplaced.
The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who have
not evinced a bona fide intention to run for office is easy to
divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater
the number of candidates, the greater the opportunities for
logistical confusion, not to mention the increased allocation
of time and resources in preparation for the election. These
practical difficulties should, of course, never exempt the
State from the conduct of a mandated electoral exercise. At
the same time, remedial actions should be available to
alleviate these logistical hardships, whenever necessary and
proper. Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes faith in
our democratic institutions. As the United States Supreme
Court held:
[T]here is surely an important state interest in
requiring some preliminary showing of a significant
modicum of support before printing the name of a
political organization and its candidates on the
ballot the interest, if no other, in avoiding
confusion, deception and even frustration of the
democratic [process].11
The COMELEC itself recognized these practical
considerations when it promulgated Resolution No. 6558 on

17 January 2004, adopting the study Memorandum of its
Law Department dated 11 January 2004. As observed in the
COMELECs Comment:
There is a need to limit the number of candidates
especially in the case of candidates for national
positions because the election process becomes a
mockery even if those who cannot clearly wage a
national campaign are allowed to run. Their names
would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the
Official Ballots. These would entail additional costs
to the government. For the official ballots in
automated counting and canvassing of votes, an
additional page would amount to more or less
FOUR HUNDRED FIFTY MILLION PESOS
(P450,000,000.00).
xxx[I]t serves no practical purpose to allow those
candidates to continue if they cannot wage a decent
campaign enough to project the prospect of
winning, no matter how slim.12
The preparation of ballots is but one aspect that would be
affected by allowance of "nuisance candidates" to run in the
elections. Our election laws provide various entitlements for
candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or even the
receipt of electoral contributions.15Moreover, there are
election rules and regulations the formulations of which are
dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a
nuisance candidacy becomes even more galling. The
organization of an election with bona fide candidates
standing is onerous enough. To add into the mix candidates
with no serious intentions or capabilities to run a viable
campaign would actually impair the electoral process. This is
not to mention the candidacies which are palpably ridiculous
so as to constitute a one-note joke. The poll body would be
bogged by irrelevant minutiae covering every step of the
electoral process, most probably posed at the instance of
these nuisance candidates. It would be a senseless sacrifice
on the part of the State.
Owing to the superior interest in ensuring a credible and
orderly election, the State could exclude nuisance
candidates and need not indulge in, as the song goes, "their
trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No.
6452 are cognizant of the compelling State interest to ensure
orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and
detract from the larger purpose. The COMELEC is mandated
by the Constitution with the administration of elections16 and
endowed with considerable latitude in adopting means and
methods that will ensure the promotion of free, orderly and
honest elections.17 Moreover, the Constitution guarantees
that only bona fide candidates for public office shall be free
from any form of harassment and discrimination.18 The

determination of bona fidecandidates is governed by the
statutes, and the concept, to our mind is, satisfactorily
defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved
are, their proper application in the case of the petitioner
cannot be tested and reviewed by this Court on the basis of
what is now before it. The assailed resolutions of the
COMELEC do not direct the Court to the evidence which it
considered in determining that petitioner was a nuisance
candidate. This precludes the Court from reviewing at this
instance whether the COMELEC committed grave abuse of
discretion in disqualifying petitioner, since such a review
would necessarily take into account the matters which the
COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of
various documents purportedly evincing his credentials as an
eligible candidate for the presidency. Yet this Court, not being
a trier of facts, can not properly pass upon the reproductions
as evidence at this level. Neither the COMELEC nor the
Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance candidate
or not is both legal and factual. The basis of the factual
determination is not before this Court. Thus, the remand of
this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioners
aspiration and offer to serve in the government. It deserves
not a cursory treatment but a hearing which conforms to the
requirements of due process.
As to petitioners attacks on the validity of the form for the
certificate of candidacy, suffice it to say that the form strictly
complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of
candidacy should contain, with the required information
tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by
the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP
(MP) No. 04-001 is hereby remanded to the COMELEC for
the reception of further evidence, to determine the question
on whether petitioner Elly Velez Lao Pamatong is a nuisance
candidate as contemplated in Section 69 of the Omnibus
Election Code.
The COMELEC is directed to hold and complete the
reception of evidence and report its findings to this Court
with deliberate dispatch.
SO ORDERED.

TONDO MEDICAL v. CA
DECISION
527 S 746 (2007)
CHICO-NAZARIO, J.:
EN BANC
This is a Petition for Review on Certiorari, under Rule

45 of the Rules of Court, assailing the Decision,
[1]
promulgated by the Court of Appeals on 26 November
TONDO MEDICAL CENTER EMPLOYEES ASSOCIATION,2004, denying a petition for the nullification of the Health
RESEARCH INSTITUTE FOR TROPICAL MEDICINE EMPLOYEESSector Reform Agenda (HSRA) Philippines 1999-2004 of the
ASSOCIATION, NATIONAL ORTHOPEDIC WORKERS UNION,Department of Health (DOH); and Executive Order No. 102,
DR. JOSE R. REYES MEMORIAL HOSPITAL EMPLOYEESRedirecting the Functions and Operations of the
UNION, SAN LAZARO HOSPITAL EMPLOYEES ASSOCIATION,Department of Health, which was issued by then President
ALLIANCE OF HEALTH WORKERS, INC., HEALTH ALLIANCEJoseph Ejercito Estrada on 24 May 1999.
FOR DEMOCRACY, COUNCIL FOR HEALTH DEVELOPMENT,
NETWORK OPPOSED TO PRIVATIZATION, COMMUNITY
Prior hereto, petitioners originally filed a Petition
MEDICINE DEVELOPMENT FOUNDATION INC., PHILIPPINEfor Certiorari, Prohibition and Mandamus under Rule 65 of
SOCIETY OF SANITARY ENGINEERS INC., KILUSANG MAYOthe 1997 Revised Rules of Civil Procedure before the
UNO, GABRIELA, KILUSANG MAGBUBUKID NG PILIPINAS,Supreme Court on 15 August 2001. However, the Supreme
KALIPUNAN NG DAMAYAN NG MGA MARALITA, ELSA O.Court, in a Resolution dated 29 August 2001, referred the
GUEVARRA, ARCADIO B. GONZALES, JOSE G. GALANG,petition to the Court of Appeals for appropriate action.
DOMINGO P. MANAY, TITO P. ESTEVES, EDUARDO P. GALOPE,
REMEDIOS M. YSMAEL, ALFREDO BACUATA, EDGARDO J.HEALTH SECTOR REFORM AGENDA (HSRA)
DAMICOG, REMEDIOS M. MALTU AND REMEGIO S. MERCADO,
Petitioners,
In 1999, the DOH launched the HSRA, a reform
agenda developed by the HSRA Technical Working Group
after a series of workshops and analyses with inputs from
several consultants, program managers and technical staff
possessing the adequate expertise and experience in the
THE COURT OF APPEALS, EXECUTIVE SECRETARY ALBERTOhealth sector. It provided for five general areas of reform: (1)
G. ROMULO, SECRETARY OF HEALTH MANUEL M. DAYRIT,to provide fiscal autonomy to government hospitals; (2)
SECRETARY OF BUDGET AND MANAGEMENT EMILIA T.secure funding for priority public health programs; (3)
BONCODIN,
promote the development of local health systems and ensure
Respondents.
its effective performance; (4) strengthen the capacities of
health regulatory agencies; and (5) expand the coverage of
the National Health Insurance Program (NHIP).[2]
- versus -
Petitioners questioned the first reform agenda

involving the fiscal autonomy of government hospitals,
particularly the collection of socialized user fees and the
corporate restructuring of government hospitals. The said
provision under the HSRA reads:
x------------------------------------------x
Provide fiscal autonomy to government

hospitals. Government hospitals must be
allowed to collect socialized user fees so
they can reduce the dependence on direct
subsidies from the government. Their
critical
capacities
like
diagnostic
equipment, laboratory facilities and
medical staff capability must be upgraded
to
effectively
exercise
fiscal
autonomy. Such investment must be
cognizant of complimentary capacity
provided
by
public-private
networks. Moreover such capacities will
allow government hospitals to supplement
priority
public
health
programs. Appropriate
institutional

arrangement must be introduced such as
allowing
them
autonomy
towards
converting
them
into
government
corporations without compromising their
social
responsibilities. As
a
result,
government hospitals are expected to be
more competitive and responsive to health
needs.
Petitioners also assailed the issuance of a draft
administrative order issued by the DOH, dated 5 January
2001, entitled Guidelines and Procedure in the
Implementation of the Corporate Restructuring of Selected
DOH Hospitals to Achieve Fiscal Autonomy, and Managerial
Flexibility to Start by January 2001;[3] and Administrative
Order No. 172 of the DOH, entitled Policies and Guidelines
on the Private Practice of Medical and Paramedical
Professionals in Government Health Facilities,[4] dated 9
January 2001, for imposing an added burden to indigent
Filipinos, who cannot afford to pay for medicine and medical
services.[5]
Petitioners alleged that the implementation of the
aforementioned reforms had resulted in making free
medicine and free medical services inaccessible to
economically disadvantaged Filipinos. Thus, they alleged
that the HSRA is void for being in violation of the following
constitutional provisions:[6]
ART. III, SEC. 1. No person shall be
deprived of life, liberty or property without
due process of law, nor shall any person
be denied the equal protection of the law.
ART II, SEC. 5. The maintenance of
peace and order, the protection of life,
liberty, and property, and the promotion of
the general welfare are essential for the
enjoyment of all the people of the
blessings of democracy.
ART II, SEC. 9. The State shall promote a
just and dynamic social order that will
ensure the prosperity and independence of
the nation and free the people from
poverty through policies that provide
adequate social services, promote full
employment, a rising standard of living and
an improved quality of life for all.
ART II, SEC. 10. The State shall promote
social justice in all phases of national
development.
ART II, SEC. 11. The State values the
dignity of every human person and
guarantees full respect for human rights.
ART II, SEC. 13. The State recognizes the
vital role of the youth in nation-building and
shall promote and protect their physical,
moral, spiritual, intellectual and social wellbeing x x x.

ART II, SEC. 18. The State affirms labor
as a primary social economic force. It
shall protect the rights of workers and
promote their welfare.
ART XV, SEC. 1. The State recognizes
the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its
solidarity and actively promote its total
development.
ART XV, SEC. 3. The State shall defend:
xxxx
(2) the right of children to assistance,
including proper care and nutrition, and
special protection from all forms of neglect,
abuse, cruelty, exploitation and other
conditions prejudicial to their development.
xxxx
ART XIII, SEC. 14. The State shall protect
working women by providing safe and
healthful working conditions, taking into
account their maternal functions, and such
facilities and opportunities that will
enhance their welfare and enable them to
realize their full potential in the service of
the nation.
ART II, SEC. 15. The State shall protect
and promote the right to health of the
people and instill health consciousness
among them.
ART XIII, SEC. 11. The State shall adopt
an
integrated
and
comprehensive
approach to health development which
shall endeavor to make essential goods,
health and other social services available
to all people at affordable cost. There
shall be priority for the needs of the
underprivileged sick, elderly, disabled,
women, and children. The State shall
endeavor to provide free medical care to
paupers.
EXECUTIVE ORDER NO. 102

On 24
May
1999,
then
President
Joseph Ejercito Estrada issued Executive Order No. 102,
entitled Redirecting the Functions and Operations of the
Department of Health, which provided for the changes in the
roles, functions, and organizational processes of the

DOH. Under the assailed executive order, the DOH
refocused its mandate from being the sole provider of health
services to being a provider of specific health services and
technical assistance, as a result of the devolution of basic
services to local government units. The provisions for the
streamlining of the DOH and the deployment of DOH
personnel to regional offices and hospitals read:
Sec. 4. Preparation of a Rationalization
and Streamlining Plan. In view of the
functional and operational redirection in
the DOH, and to effect efficiency and
effectiveness in its activities, the
Department shall prepare a Rationalization
and Streamlining Plan (RSP) which shall
be the basis of the intended changes. The
RSP shall contain the following:
a)
b)
c)
d)
the specific shift in policy

directions, functions, programs
and activities/strategies;
the
structural
and
organizational shift, stating the
specific functions and activities by
organizational unit and the
relationship of each units;
the staffing shift, highlighting
and itemizing the existing filled
and unfilled positions; and
the resource allocation shift,
specifying the effects of the
streamline set-up on the agency
budgetary
allocation
and
indicating
where
possible,
savings have been generated.
The RSP shall [be] submitted to the

Department of Budget and Management
for approval before the corresponding
shifts shall be affected (sic) by the DOH
Secretary.
Sec. 5. Redeployment of Personnel. The
redeployment of officials and other
personnel on the basis of the approved
RSP shall not result in diminution in rank
and compensation of existing personnel. It
shall take into account all pertinent Civil
Service laws and rules.
Section
6. Funding. The
financial
resources needed to implement the
Rationalization and Streamlining Plan shall
be taken from funds available in the DOH,
provided that the total requirements for the
implementation of the revised staffing
pattern shall not exceed available funds for
Personnel Services.
Section 7. Separation Benefits. Personnel
who opt to be separated from the service
as a consequence of the implementation

of this Executive Order shall be entitled to
the benefits under existing laws. In the
case of those who are not covered by
existing laws, they shall be entitled to
separation benefits equivalent to one
month basic salary for every year of
service or proportionate share thereof in
addition to the terminal fee benefits to
which he/she is entitled under existing
laws.
Executive Order No. 102 was enacted pursuant to

Section 17 of the Local Government Code (Republic Act No.
7160), which provided for the devolution to the local
government units of basic services and facilities, as well as
specific health-related functions and responsibilities.[7]
Petitioners contended that a law, such as Executive
Order No. 102, which effects the reorganization of the DOH,
should be enacted by Congress in the exercise of its
legislative function. They argued that Executive Order No.
102 is void, having been issued in excess of the Presidents
authority.[8]
Moreover,
petitioners
averred
that
the
implementation of the Rationalization and Streamlining Plan
(RSP) was not in accordance with law. The RSP was
allegedly implemented even before the Department of
Budget and Management (DBM) approved it. They also
maintained that the Office of the President should have
issued an administrative order to carry out the streamlining,
but that it failed to do so.[9]
Furthermore,
petitioners
Elsa
O. Guevarra, Arcadio B.
Gonzales,
Jose
G. Galang,
Domingo
P. Manay,
Eduardo
P. Galope, Remedios M. Ysmael,
Alfredo
U. Bacuata andEdgardo J. Damicog, all DOH employees,
assailed the validity of Executive Order No. 102 on the
ground that they were likely to lose their jobs, and that some
of them were suffering from the inconvenience of having to
travel a longer distance to get to their new place of work,
while other DOH employees had to relocate to far-flung
areas.[10]
Petitioners also pointed out several errors in the
implementation of the RSP. Certain employees allegedly
suffered diminution of compensation,[11] while others were
supposedly assigned to positions for which they were neither
qualified nor suited.[12] In addition, new employees were
purportedly hired by the DOH and appointed to positions for
which they were not qualified, despite the fact that the
objective of the ongoing streamlining was to cut back on
costs.[13] It was also averred that DOH employees were
deployed or transferred even during the three-month period
before the national and local elections in May 2001, [14] in
violation of Section 2 of the Republic Act No. 7305, also
known
as
Magna Carta for
Public
Health
Workers.[15] Petitioners, however, failed to identify the DOH

employees referred to above, much less include them as
parties to the petition.
THE HONORABLE COURT OF APPEALS

COMMITTED MANIFEST ERROR IN
RULING THAT ANY QUESTION ON THE
WISDOM AND EFFICACY OF THE
HEALTH SECTOR REFORM AGENDA IS
NOT A JUSTICIABLE CONTROVERSY
AND THAT THE CONSTITUTIONAL
PROVISIONS
PROTECTING
THE
HEALTH OF THE FILIPINO PEOPLE ARE
NOT JUDICIALLY ENFORCEABLE;
The Court of Appeals denied the petition due to a

number of procedural defects, which proved fatal: 1)
Petitioners failed to show capacity or authority to sign the
certification of non-forum shopping and the verification;
2) Petitioners failed to show any particularized interest for
bringing the suit, nor any direct or personal injury sustained
or were in the immediate danger of sustaining; 3) the
Petition, brought before the Supreme Court on 15 August
1999, was filed out of time, or beyond 60 days from the time
the reorganization methods were implemented in 2000; and
4) certiorari, Prohibition and Mandamus will not lie where
the President, in issuing the assailed Executive Order, was
not acting as a tribunal, board or officer exercising judicial or
quasi-judicial functions.
II.
RULING
THAT
PETITIONERS
COMPLAINT THAT EXECUTIVE ORDER
NO. 102 IS DETRIMENTAL TO THE
FILIPINO
IS
LIKEWISE
NOT
A
JUSTICIABLE CONTROVERSY AND
THAT THE PRESIDENT HAS THE
AUTHORITY TO ISSUE SAID ORDER;
AND
In resolving the substantial issues of the case, the

Court of Appeals ruled that the HSRA cannot be declared
void for violating Sections 5, 9, 10, 11, 13, 15, 18 of Article II;
Section 1 of Article III; Sections 11 and 14 of Article XIII; and
Sections 1 and 3(2) of Article XV, all of the 1987 Constitution,
which directly or indirectly pertain to the duty of the State to
protect and promote the peoples right to health and wellbeing. It reasoned that the aforementioned provisions of the
Constitution are not self-executing; they are not judicially
enforceable constitutional rights and can only provide
guidelines for legislation.
Moreover, the Court of Appeals held that the
petitioners assertion that Executive Order No. 102 is
detrimental to the health of the people cannot be made
a justiciable issue. The question of whether the HSRA will
bring about the development or disintegration of the health
sector is within the realm of the political department.
Furthermore, the Court of Appeals decreed that the
President was empowered to issue Executive Order No. 102,
in accordance with Section 17 Article VII of the 1987
Constitution. It also declared that the DOH did not implement
Executive Order No. 102 in bad faith or with grave abuse of
discretion, as alleged by the petitioners, as the DOH issued
Department Circular No. 275-C, Series of 2000, which
created the different committees tasked with the
implementation of the RSP, only after both the DBM
andPresidential Committee on Effective Governance (PCEG)
approved the RSP on 8 July 2000 and 17 July 2000,
respectively.
Petitioners filed with the Court of Appeals a Motion for
Reconsideration of the Decision rendered on 26 November
2004, but the same was denied in a Resolution dated 7
March 2005.
Hence, the present petition, where the following issues
are raised:
I.
III.
UPHOLDING TECHNICALITIES OVER
AND
ABOVE
THE
ISSUES
OF
TRANSCENDENTAL
IMPORTANCE
RAISED IN THE PETITION BELOW. [16]
The Court finds the present petition to be without

merit.
Petitioners allege that the HSRA should be declared

void, since it runs counter to the aspiration and ideals of the
Filipino people as embodied in the Constitution. [17] They
claim that the HSRAs policies of fiscal autonomy, income
generation, and revenue enhancement violate Sections 5, 9,
10, 11, 13, 15 and 18 of Article II, Section 1 of Article III;
Sections 11 and 14 of Article XIII; and Sections 1 and 3 of
Article XV of the 1987 Constitution. Such policies allegedly
resulted in making inaccessible free medicine and free
medical services. This contention is unfounded.
As a general rule, the provisions of the Constitution
are considered self-executing, and do not require future
legislation for their enforcement. For if they are not treated
as self-executing, the mandate of the fundamental law can
be easily nullified by the inaction of Congress.[18] However,
some provisions have already been categorically declared by
this Court as non self-executing.
In Tanada v. Angara,[19] the Court specifically set
apart the sections found under Article II of the 1987
Constitution as non self-executing and ruled that such broad

principles need legislative enactments before they can be
implemented:
By its very title, Article II of the
Constitution is a declaration of principles
and state policies. x x x. These principles
in Article II are not intended to be selfexecuting principles ready for enforcement
through the courts. They are used by the
judiciary as aids or as guides in the
exercise of its power of judicial review, and
by the legislature in its enactment of laws.
In Basco v. Philippine Amusement and Gaming

Corporation,[20] this Court declared that Sections 11, 12, and
13 of Article II; Section 13 of Article XIII; and Section 2 of
Article XIV of the 1987 Constitution are not self-executing
provisions. In Tolentino v. Secretary of Finance,[21] the Court
referred to Section 1 of Article XIII and Section 2 of Article
XIV of the Constitution as moral incentives to legislation, not
as judicially enforceable rights. These provisions, which
merely lay down a general principle, are distinguished from
other constitutional provisions as non self-executing and,
therefore, cannot give rise to a cause of action in the courts;
they do not embody judicially enforceable constitutional
rights.[22]
Some of the constitutional provisions invoked in the
present case were taken from Article II of the Constitution -specifically, Sections 5, 9, 10, 11, 13, 15 and 18 -- the
provisions of which the Court categorically ruled to be non
self-executing in the aforecited case of Taada v. Angara.
[23]
Moreover, the records are devoid of any explanation of

how the HSRA supposedly violated the equal protection and
due process clauses that are embodied in Section 1 of
Article III of the Constitution. There were no allegations of
discrimination or of the lack of due process in connection
with the HSRA. Since they failed to substantiate how these
constitutional guarantees were breached, petitioners are
unsuccessful in establishing the relevance of this provision to
the petition, and consequently, in annulling the HSRA.
In the remaining provisions, Sections 11 and 14 of
Article XIII and Sections 1 and 3 of Article XV, the State
accords recognition to the protection of working women and
the provision for safe and healthful working conditions; to the
adoption of an integrated and comprehensive approach to
health; to the Filipino family; and to the right of children to
assistance and special protection, including proper care and
nutrition. Like the provisions that were declared as non selfexecutory in the cases of Basco v. Philippine Amusement
and Gaming Corporation[24] and Tolentino v. Secretary of
Finance,[25] they are mere statements of principles and
policies. As such, they are mere directives addressed to the
executive and the legislative departments. If unheeded, the
remedy will not lie with the courts; but rather, the electorates
displeasure may be manifested in their votes.
The rationale for this is given by Justice

Dante Tinga in his Separate Opinion in the case
of Agabon v. National Labor Relations Commission[26]:
x x x However, to declare that the
constitutional provisions are enough to
guarantee the full exercise of the rights
embodied therein, and the realization of
the ideals therein expressed, would be
impractical,
if
not
unrealistic. The
espousal of such view presents the
dangerous tendency of being overbroad
and
exaggerated. x x x Subsequent
legislation is still needed to define the
parameters
of
these
guaranteed
rights. x x x Without specific and pertinent
legislation, judicial bodies will be at a loss,
formulating their own conclusion to
approximate at least the aims of the
Constitution.
The HSRA cannot be nullified based solely on

petitioners bare allegations that it violates the general
principles expressed in the non self-executing provisions
they cite herein. There are two reasons for denying a cause
of action to an alleged infringement of broad constitutional
principles: basic considerations of due process and the
limitations of judicial power.[27]
Petitioners also claim that Executive Order No. 102
is void on the ground that it was issued by the President in
excess of his authority. They maintain that the structural and
functional reorganization of the DOH is an exercise of
legislative functions, which the President usurped when he
issued Executive Order No. 102.[28] This line of argument is
without basis.
This Court has already ruled in a number of cases
that the President may, by executive or administrative order,
direct the reorganization of government entities under the
Executive Department.[29] This is also sanctioned under the
Constitution, as well as other statutes.
Section 17, Article VII of the 1987 Constitution,
clearly states: [T]he president shall have control of all
executive departments, bureaus and offices. Section 31,
Book III, Chapter 10 of Executive Order No. 292, also known
as the Administrative Code of 1987 reads:
SEC. 31. Continuing Authority of
the President to Reorganize his Office The President, subject to the policy in the
Executive Office and in order to achieve
simplicity, economy and efficiency, shall
have continuing authority to reorganize the
administrative structure of the Office of the
President. For this purpose, he may take
any of the following actions:

(1)
Restructure
the
internal
organization of the Office of the President
Proper, including the immediate offices,
the
Presidential
Special
Assistants/Advisers System and the
Common Staff Support System, by
abolishing consolidating or merging units
thereof or transferring functions from one
unit to another;
(2)
Transfer any function under
the Office of the President to any other
Department or Agency as well as transfer
functions to the Office of the President
from other Departments or Agencies; and
(3)
Transfer any agency under the
Office of the President to any other
department or agency as well as transfer
agencies to the Office of the President
from other Departments or agencies.
In Domingo v. Zamora,[30] this Court explained the

rationale behind the Presidents continuing authority under
the Administrative Code to reorganize the administrative
structure of the Office of the President. The law grants the
President the power to reorganize the Office of the President
in recognition of the recurring need of every President to
reorganize his or her office to achieve simplicity, economy
and efficiency. To remain effective and efficient, it must be
capable of being shaped and reshaped by the President in
the manner the Chief Executive deems fit to carry out
presidential directives and policies.
The Administrative Code provides that the Office of
the President consists of the Office of the President Proper
and the agencies under it.[31] The agencies under the Office
of the President are identified in Section 23, Chapter
8, Title II of the Administrative Code:
Sec. 23. The Agencies under the
Office of the President.The agencies
under the Office of the President refer to
those
offices
placed
under
the
chairmanship of the President, those
under the supervision and control of
the
President,
those
under
the
administrative supervision of the Office of
the President, those attached to it for
policy and program coordination, and
those that are not placed by law or order
creating them under any specific
department. (Emphasis provided.)
Section 2(4) of the Introductory Provisions of the

Administrative Code defines the term agency of the
government as follows:
Agency of the Government refers to any of

the various units of the Government,
including a department, bureau, office,
instrumentality, or government-owned or
controlled corporation, or a local
government or a distinct unit therein.
Furthermore, the DOH is among the cabinet-level

departments enumerated under Book IV of the
Administrative Code, mainly tasked with the functional
distribution of the work of the President. [32] Indubitably, the
DOH is an agency which is under the supervision and control
of the President and, thus, part of the Office of the
President. Consequently, Section 31, Book III, Chapter 10 of
the Administrative Code, granting the President the
continued authority to reorganize the Office of the President,
extends to the DOH.
The power of the President to reorganize the
executive department is likewise recognized in general
appropriations laws. As early as 1993, Sections 48 and 62 of
Republic Act No. 7645, the General Appropriations Act for
Fiscal Year 1993, already contained a provision stating that:
Sec. 48. Scaling Down and Phase
Out of Activities Within the Executive
Branch.The heads of departments,
bureaus and offices and agencies are
hereby directed to identify their respective
activities which are no longer essential in
the delivery of public services and which
may be scaled down, phased out, or
abolished, subject to civil service rules and
regulations. x x x. Actual scaling down,
phasing out, or abolition of activities
shall be effected pursuant to Circulars
or Orders issued for the purpose by the
Office of the President. (Emphasis
provided.)
Sec.
62. Unauthorized
Organizational
Changes. Unless
otherwise created by law or directed by the
President
of
the
Philippines,
no
organizational unit or changes in key
positions in any department or agency
shall be authorized in their respective
organizational structures and be funded
form appropriations by this Act.
Again, in the year when Executive Order No. 102 was

issued, The General Appropriations Act of Fiscal Year 1999
(Republic Act No. 8745) conceded to the President the
power to make any changes in any of the key positions and
organizational units in the executive department thus:
Sec.
77. Organized
Changes. Unless otherwise provided by
law or directed by the President of

the Philippines, no changes in key
positions or organizational units in any
department or agency shall be authorized
in their respective organizational structures
and funded from appropriations provided
by this Act.
Clearly, Executive Order No. 102 is well within the

constitutional power of the President to issue. The President
did not usurp any legislative prerogative in issuing Executive
Order No. 102. It is an exercise of the Presidents
constitutional power of control over the executive
department, supported by the provisions of the
Administrative Code, recognized by other statutes, and
consistently affirmed by this Court.
Petitioners also pointed out several flaws in the
implementation of Executive Order No. 102, particularly the
RSP. However, these contentions are without merit and are
insufficient to invalidate the executive order.
The RSP was allegedly implemented even before
the DBM approved it. The facts show otherwise. It was only
after the DBM approved the Notice of Organization, Staffing
and Compensation Action on 8 July 2000,[33] and after the
Presidential Committee on Effective Governance (PCEG)
issued on 17 July 2000 Memorandum Circular No. 62,
[34]
approving the RSP, that then DOH Secretary Alberto
G. Romualdez issued on 28 July 2000 Department Circular
No. 275-C, Series of 2000,[35] creating the different
committees to implement the RSP.
Petitioners also maintain that the Office of the
President should have issued an administrative order to
carry out the streamlining, but that it failed to do so. Such
objection cannot be given any weight considering that the
acts of the DOH Secretary, as an alter ego of the President,
are presumed to be the acts of the President. The members
of the Cabinet are subject at all times to the disposition of the
President since they are merely his alter egos.[36] Thus, their
acts, performed and promulgated in the regular course of
business, are, unless disapproved by the President,
presumptively acts of the President. [37] Significantly, the acts
of the DOH Secretary were clearly authorized by the
President, who, thru the PCEG, issued the aforementioned
Memorandum
Circular
No.
62,
sanctioning
the
implementation of the RSP.
Petitioners
Elsa Odonzo Guevarra, Arcadio B.
Gonzales, Jose G. Galang, Domingo P. Manay, Eduardo
P. Galope, Remedios M. Ysmael,
Alfredo
U. Bacuata,
andEdgardo Damicog, all DOH employees, assailed the
validity of Executive Order No. 102 on the ground that they
were likely to lose their jobs, and that some of them were
suffering from the inconvenience of having to travel a longer
distance to get to their new place of work, while other DOH
employees had to relocate to far-flung areas.
In
several
cases,
this
Court
regarded
reorganizations of government units or departments as valid,
for so long as they are pursued in good faiththat is, for the
purpose of economy or to make bureaucracy more efficient.
[38]
On the other hand, if the reorganization is done for the
purpose of defeating security of tenure or for ill-motivated
political purposes, any abolition of position would be
invalid. None of these circumstances are applicable since
none of the petitioners were removed from public service,
nor did they identify any action taken by the DOH that would
unquestionably result in their dismissal. The reorganization
that was pursued in the present case was made in good
faith. The RSP was clearly designed to improve the
efficiency of the department and to implement the provisions
of the Local Government Code on the devolution of health
services to local governments. While this Court recognizes
the inconvenience suffered by public servants in their
deployment to distant areas, the executive departments
finding of a need to make health services available to these
areas and to make delivery of health services more efficient
and more compelling is far from being unreasonable or
arbitrary, a determination which is well within its authority. In
all, this Court finds petitioners contentions to be insufficient
to invalidate Executive Order No. 102.
Without identifying the DOH employees concerned,
much less including them as parties to the petition,
petitioners went on identifying several errors in the
implementation of Executive Order No. 102. First, they
alleged that unidentified DOH employees suffered from a
diminution of compensation by virtue of the provision on
Salaries and Benefits found in Department Circular No. 312,
Series of 2000, issued on 23 October 2000, which reads:
2. Any employee who was matched to a
position with lower salary grade (SG) shall
not suffer a reduction in salary except
where his/her current salary is higher than
the maximum step of the SG of the new
position, in which case he/she shall be
paid the salary corresponding to the
maximum step of the SG of the new
position. RATA shall no longer be
received, if employee was matched to a
Non-Division Chief Position.
Incidentally, the petition shows that none of the petitioners,

who are working in the DOH, were entitled to receive RATA
at the time the petition was filed. Nor was it alleged that they
suffered any diminution of compensation. Secondly, it was
claimed that certain unnamed DOH employees were
matched with unidentified positions for which they were
supposedly neither qualified nor suited. New employees,
again unnamed and not included as parties, were hired by
the DOH and appointed to unidentified positions for which
they were purportedly not qualified, despite the fact that the
objective of the ongoing streamlining was to cut back on
costs. Lastly, unspecified DOH employees were deployed
or transferred during the three-month period before the
national and local elections in May 2001, in violation of
Section 2 of the Republic Act No. 7305, also known as
MagnaCarta for Public Health Workers.

Petitioners allegations are too general and
unsubstantiated by the records for the Court to pass
upon. The persons involved are not identified, details of their
appointments and transfers such as position, salary grade,
and the date they were appointed - are not given; and the
circumstances which attended the alleged violations are not
specified.
Even granting that these alleged errors were
adequately proven by the petitioners, they would still not
invalidate Executive Order No. 102. Any serious legal errors
in laying down the compensation of the DOH employees
concerned can only invalidate the pertinent provisions
of Department Circular No. 312, Series of 2000. Likewise,
any questionable appointments or transfers are properly
addressed by an appeal process provided under
Administrative Order No. 94, series of 2000; [39] and if the
appeal is meritorious, such appointment or transfer may be
invalidated. The validity of Executive Order No. 102 would,
nevertheless, remain unaffected. Settled is the rule that
courts are not at liberty to declare statutes invalid, although
they may be abused or misabused, and may afford an
opportunity for abuse in the manner of application. The
validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end
desired, not from its effects in a particular case.[40]
In a number of cases,[41] the Court upheld the
standing of citizens who filed suits, wherein the
transcendental importance of the constitutional question
justified the granting of relief. In spite of these rulings, the
Court, in Domingo v. Carague,[42] dismissed the petition when
petitioners therein failed to show any present substantial
interest. It demonstrated how even in the cases in which the
Court declared that the matter of the case was of
transcendental importance, the petitioners must be able to
assert substantial interest. Present substantial interest,
which will enable a party to question the validity of the law,
requires that a party sustained or will sustain direct injury as
a result of its enforcement.[43] It is distinguished from a mere
expectancy or future, contingent, subordinate, or
inconsequential interest.[44]
In the same way, the Court, in Telecommunications
& Broadcast Attorneys of the Philippines, Inc. v. Comelec,
[45]
ruled that a citizen is allowed to raise a constitutional
question only when he can show that he has personally
suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly
traceable to the challenged action; and the injury is likely to
be redressed by a favorable action. This case likewise
stressed that the rule on constitutional questions which are
of transcendental importance cannot be invoked where a
partys substantive claim is without merit. Thus, a partys
standing is determined by the substantive merit of his case
or a preliminary estimate thereof. After a careful scrutiny of
the petitioners substantive claims, this Court finds that the
petitioners miserably failed to show any merit to their claims.
IN VIEW OF THE FOREGOING, the instant Petition

is DENIED. This Court AFFIRMS the assailed Decision of
the Court of Appeals, promulgated on 26 November 2004,
declaring both the HSRA and Executive Order No. 102 as
valid. No costs.
SO ORDERED.
SERRANO v. GALLANT MARITIME

582 S 254 (2009)
SUPREME COURT
Manila
EN BANC
G.R. No. 167614
March 24, 2009
ANTONIO M. SERRANO, Petitioner,

vs.
Gallant MARITIME SERVICES, INC. and MARLOW
NAVIGATION CO., INC., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
For decades, the toil of solitary migrants has helped lift entire
families and communities out of poverty. Their earnings have
built houses, provided health care, equipped schools and
planted the seeds of businesses. They have woven together
the world by transmitting ideas and knowledge from country
to country. They have provided the dynamic human link
between cultures, societies and economies. Yet, only
recently have we begun to understand not only how much
international migration impacts development, but how smart
public policies can magnify this effect.
United Nations Secretary-General Ban Ki-Moon
Global Forum on Migration and Development
Brussels, July 10, 20071
For Antonio Serrano (petitioner), a Filipino seafarer, the last
clause in the 5th paragraph of Section 10, Republic Act
(R.A.) No. 8042,2 to wit:
Sec. 10. Money Claims. - x x x In case of termination of
overseas employment without just, valid or authorized cause
as defined by law or contract, the workers shall be entitled to
the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term,
whichever is less.

x x x x (Emphasis and underscoring supplied)
does not magnify the contributions of overseas Filipino
workers (OFWs) to national development, but exacerbates
the hardships borne by them by unduly limiting their
entitlement in case of illegal dismissal to their lump-sum
salary either for the unexpired portion of their employment
contract "or for three months for every year of the unexpired
term, whichever is less" (subject clause). Petitioner claims
that the last clause violates the OFWs' constitutional rights in
that it impairs the terms of their contract, deprives them of
equal protection and denies them due process.
By way of Petition for Review under Rule 45 of the Rules of
Court, petitioner assails the December 8, 2004 Decision3 and
April 1, 2005 Resolution4 of the Court of Appeals (CA), which
applied the subject clause, entreating this Court to declare
the subject clause unconstitutional.
Petitioner was hired by Gallant Maritime Services, Inc. and
Marlow Navigation Co., Ltd. (respondents) under a Philippine
Overseas Employment Administration (POEA)-approved
Contract of Employment with the following terms and
conditions:
Duration of contract
12 months
Position
Chief Officer
Basic monthly salary
US$1,400.00
Hours of work
48.0 hours per week
Overtime
US$700.00 per month
Vacation leave with pay
7.00 days per month5
On March 19, 1998, the date of his departure, petitioner was

constrained to accept a downgraded employment contract
for the position of Second Officer with a monthly salary of
US$1,000.00, upon the assurance and representation of
respondents that he would be made Chief Officer by the end
of April 1998.6
Respondents did not deliver on their promise to make
petitioner Chief Officer.7 Hence, petitioner refused to stay on
as Second Officer and was repatriated to the Philippines on
May 26, 1998.8
Petitioner's employment contract was for a period of 12
months or from March 19, 1998 up to March 19, 1999, but at
the time of his repatriation on May 26, 1998, he had served
only two (2) months and seven (7) days of his contract,
leaving an unexpired portion of nine (9) months and twentythree (23) days.
Petitioner filed with the Labor Arbiter (LA) a
Complaint9 against respondents for constructive dismissal
and for payment of his money claims in the total amount of
US$26,442.73, broken down as follows:
as well as moral and exemplary damages and

attorney's fees.
The LA rendered a Decision dated July 15, 1999,
declaring the dismissal of petitioner illegal and
awarding him monetary benefits, to wit:
WHEREFORE, premises considered, judgment is
hereby rendered declaring that the dismissal of the
complainant (petitioner) by the respondents in the
above-entitled case was illegal and the respondents
are hereby ordered to pay the complainant
[petitioner], jointly and severally, in Philippine
Currency, based on the rate of exchange prevailing
at the time of payment, the amount of EIGHT
THOUSAND SEVEN HUNDRED SEVENTY U.S.
DOLLARS (US $8,770.00), representing the
complainants salary for three (3) months of the
unexpired portion of the aforesaid contract of
employment.1avvphi1
The respondents are likewise ordered to pay the
complainant [petitioner], jointly and severally, in
Philippine Currency, based on the rate of exchange
prevailing at the time of payment, the amount of
FORTY
FIVE
U.S.
DOLLARS
(US$
45.00),12 representing the complainants claim for a
salary differential. In addition, the respondents are
hereby ordered to pay the complainant, jointly and
severally, in Philippine Currency, at the exchange
rate prevailing at the time of payment, the
complainants (petitioner's) claim for attorneys fees
equivalent to ten percent (10%) of the total amount
awarded to the aforesaid employee under this
Decision.
The claims of the complainant for moral and
exemplary damages are hereby DISMISSED for
lack of merit.
All other claims are hereby DISMISSED.
SO ORDERED.13 (Emphasis supplied)
In awarding petitioner a lump-sum salary of
US$8,770.00, the LA based his computation on the
salary period of three months only -- rather than the
entire unexpired portion of nine months and 23
days of petitioner's employment contract - applying
the subject clause. However, the LA applied the
salary rate of US$2,590.00, consisting of
petitioner's "[b]asic salary, US$1,400.00/month +
US$700.00/month,
fixed
overtime
pay,
+
US$490.00/month,
vacation
leave
pay
=
US$2,590.00/compensation per month."14
Respondents appealed15 to the National Labor
Relations Commission (NLRC) to question the
finding of the LA that petitioner was illegally
dismissed.

Petitioner also appealed16 to the NLRC on the sole
issue that the LA erred in not applying the ruling of
the Court in Triple Integrated Services, Inc. v.
National Labor Relations Commission17 that in case
of illegal dismissal, OFWs are entitled to their
salaries for the unexpired portion of their
contracts.18
In a Decision dated June 15, 2000, the NLRC
modified the LA Decision, to wit:
I
The Court of Appeals and the labor tribunals have decided
the case in a way not in accord with applicable decision of
the Supreme Court involving similar issue of granting unto
the migrant worker back wages equal to the unexpired
portion of his contract of employment instead of limiting it to
three (3) months
II
WHEREFORE, the Decision dated 15 July 1999 is

MODIFIED. Respondents are hereby ordered to
pay complainant, jointly and severally, in Philippine
currency, at the prevailing rate of exchange at the
time of payment the following:
1. Three (3) months salary
$1,400 x 3
2. Salary differential
In the alternative that the Court of Appeals and the Labor

Tribunals were merely applying their interpretation of Section
10 of Republic Act No. 8042, it is submitted that the Court of
Appeals gravely erred in law when it failed to discharge its
judicial duty to decide questions of substance not theretofore
determined by the Honorable Supreme Court, particularly,
the constitutional issues raised by the petitioner on the
constitutionality of said law, which unreasonably, unfairly and
US$4,200.00 arbitrarily limits payment of the award for back wages of
overseas workers to three (3) months.
45.00
US$4,245.00
III
3. 10% Attorneys fees
424.50
TOTAL
US$4,669.50
The other findings are affirmed.
Even without considering the constitutional limitations [of]

Sec. 10 of Republic Act No. 8042, the Court of Appeals
gravely erred in law in excluding from petitioners award the
overtime pay and vacation pay provided in his contract since
under the contract they form part of his salary.28
SO ORDERED.19
The NLRC corrected the LA's computation of the lump-sum
salary awarded to petitioner by reducing the applicable
salary rate from US$2,590.00 to US$1,400.00 because R.A.
No. 8042 "does not provide for the award of overtime pay,
which should be proven to have been actually performed,
and for vacation leave pay."20
Petitioner filed a Motion for Partial Reconsideration, but this
time he questioned the constitutionality of the subject
clause.21 The NLRC denied the motion.22
Petitioner filed a Petition for Certiorari23 with the CA,
reiterating the constitutional challenge against the subject
clause.24 After initially dismissing the petition on a
technicality, the CA eventually gave due course to it, as
directed by this Court in its Resolution dated August 7, 2003
which granted the petition for certiorari, docketed as G.R.
No. 151833, filed by petitioner.
In a Decision dated December 8, 2004, the CA affirmed the
NLRC ruling on the reduction of the applicable salary rate;
however, the CA skirted the constitutional issue raised by
petitioner.25
His Motion for Reconsideration26 having been denied by the
CA,27 petitioner brings his cause to this Court on the
following grounds:
On February 26, 2008, petitioner wrote the Court to withdraw

his petition as he is already old and sickly, and he intends to
make use of the monetary award for his medical treatment
and medication.29 Required to comment, counsel for
petitioner filed a motion, urging the court to allow partial
execution of the undisputed monetary award and, at the
same time, praying that the constitutional question be
resolved.30
Considering that the parties have filed their respective
memoranda, the Court now takes up the full merit of the
petition mindful of the extreme importance of the
constitutional question raised therein.
On the first and second issues
The unanimous finding of the LA, NLRC and CA that the
dismissal of petitioner was illegal is not disputed. Likewise
not disputed is the salary differential of US$45.00 awarded to
petitioner in all three fora. What remains disputed is only the
computation of the lump-sum salary to be awarded to
petitioner by reason of his illegal dismissal.
Applying the subject clause, the NLRC and the CA computed
the lump-sum salary of petitioner at the monthly rate of
US$1,400.00 covering the period of three months out of the
unexpired portion of nine months and 23 days of his
employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause,
petitioner contends that, in addition to the US$4,200.00
awarded by the NLRC and the CA, he is entitled to
US$21,182.23 more or a total of US$25,382.23, equivalent
to his salaries for the entire nine months and 23 days left of
his employment contract, computed at the monthly rate of
US$2,590.00.31
The Arguments of Petitioner
Petitioner contends that the subject clause is unconstitutional
because it unduly impairs the freedom of OFWs to negotiate
for and stipulate in their overseas employment contracts a
determinate employment period and a fixed salary
package.32 It also impinges on the equal protection clause,
for it treats OFWs differently from local Filipino workers (local
workers) by putting a cap on the amount of lump-sum salary
to which OFWs are entitled in case of illegal dismissal, while
setting no limit to the same monetary award for local workers
when their dismissal is declared illegal; that the disparate
treatment is not reasonable as there is no substantial
distinction between the two groups;33 and that it defeats
Section 18,34 Article II of the Constitution which guarantees
the protection of the rights and welfare of all Filipino workers,
whether deployed locally or overseas.35
Moreover, petitioner argues that the decisions of the CA and
the labor tribunals are not in line with existing jurisprudence
on the issue of money claims of illegally dismissed OFWs.
Though there are conflicting rulings on this, petitioner urges
the Court to sort them out for the guidance of affected
OFWs.36
Petitioner further underscores that the insertion of the
subject clause into R.A. No. 8042 serves no other purpose
but to benefit local placement agencies. He marks the
statement made by the Solicitor General in his
Memorandum, viz.:
Often, placement agencies, their liability being solidary,
shoulder the payment of money claims in the event that
jurisdiction over the foreign employer is not acquired by the
court or if the foreign employer reneges on its obligation.
Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the
acts of the foreign employer. To protect them and to promote
their continued helpful contribution in deploying Filipino
migrant workers, liability for money claims was reduced
under Section 10 of R.A. No. 8042. 37(Emphasis supplied)
Petitioner argues that in mitigating the solidary liability of
placement agencies, the subject clause sacrifices the wellbeing of OFWs. Not only that, the provision makes foreign
employers better off than local employers because in cases
involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only
three months of the unexpired employment contract while
local employers are liable for the full lump-sum salaries of
their employees. As petitioner puts it:
In terms of practical application, the local employers are not

limited to the amount of backwages they have to give their
employees they have illegally dismissed, following wellentrenched and unequivocal jurisprudence on the matter. On
the other hand, foreign employers will only be limited to
giving the illegally dismissed migrant workers the maximum
of three (3) months unpaid salaries notwithstanding the
unexpired term of the contract that can be more than three
(3) months.38
Lastly, petitioner claims that the subject clause violates the
due process clause, for it deprives him of the salaries and
other emoluments he is entitled to under his fixed-period
employment contract.39
The Arguments of Respondents
In their Comment and Memorandum, respondents contend
that the constitutional issue should not be entertained, for
this was belatedly interposed by petitioner in his appeal
before the CA, and not at the earliest opportunity, which was
when he filed an appeal before the NLRC.40
The Arguments of the Solicitor General
The Solicitor General (OSG)41 points out that as R.A. No.
8042 took effect on July 15, 1995, its provisions could not
have impaired petitioner's 1998 employment contract.
Rather, R.A. No. 8042 having preceded petitioner's contract,
the provisions thereof are deemed part of the minimum
terms of petitioner's employment, especially on the matter of
money claims, as this was not stipulated upon by the
parties.42
Moreover, the OSG emphasizes that OFWs and local
workers differ in terms of the nature of their employment,
such that their rights to monetary benefits must necessarily
be treated differently. The OSG enumerates the essential
elements that distinguish OFWs from local workers: first,
while local workers perform their jobs within Philippine
territory, OFWs perform their jobs for foreign employers, over
whom it is difficult for our courts to acquire jurisdiction, or
against whom it is almost impossible to enforce judgment;
and second, as held in Coyoca v. National Labor Relations
Commission43 and Millares v. National Labor Relations
Commission,44 OFWs are contractual employees who can
never acquire regular employment status, unlike local
workers who are or can become regular employees. Hence,
the OSG posits that there are rights and privileges exclusive
to local workers, but not available to OFWs; that these
peculiarities make for a reasonable and valid basis for the
differentiated treatment under the subject clause of the
money claims of OFWs who are illegally dismissed. Thus,
the provision does not violate the equal protection clause nor
Section 18, Article II of the Constitution.45
Lastly, the OSG defends the rationale behind the subject
clause as a police power measure adopted to mitigate the
solidary liability of placement agencies for this "redounds to
the benefit of the migrant workers whose welfare the

government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that
migrant workers are properly deployed and are employed
under decent and humane conditions."46
contract, and not just for a period of three months, strikes at

the very core of the subject clause.
Thus, the stage is all set for the determination of the
constitutionality of the subject clause.
The Court's Ruling

The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of
judicial review of the acts of its co-equals, such as the
Congress, it does so only when these conditions obtain: (1)
that there is an actual case or controversy involving a conflict
of rights susceptible of judicial determination;47 (2) that the
constitutional question is raised by a proper party48 and at
the earliest opportunity;49 and (3) that the constitutional
question is the very lis mota of the case, 50otherwise the
Court will dismiss the case or decide the same on some
other ground.51
Without a doubt, there exists in this case an actual
controversy directly involving petitioner who is personally
aggrieved that the labor tribunals and the CA computed his
monetary award based on the salary period of three months
only as provided under the subject clause.
The constitutional challenge is also timely. It should be borne
in mind that the requirement that a constitutional issue be
raised at the earliest opportunity entails the interposition of
the issue in the pleadings before acompetent court, such
that, if the issue is not raised in the pleadings before that
competent court, it cannot be considered at the trial and, if
not considered in the trial, it cannot be considered on
appeal.52 Records disclose that the issue on the
constitutionality of the subject clause was first raised, not in
petitioner's appeal with the NLRC, but in his Motion for
Partial Reconsideration with said labor tribunal, 53 and
reiterated
in
his
Petition
forCertiorari before
the
CA.54 Nonetheless, the issue is deemed seasonably raised
because it is not the NLRC but the CA which has the
competence to resolve the constitutional issue. The NLRC is
a labor tribunal that merely performs a quasi-judicial function
its function in the present case is limited to determining
questions of fact to which the legislative policy of R.A. No.
8042 is to be applied and to resolving such questions in
accordance with the standards laid down by the law
itself;55 thus, its foremost function is to administer and
enforce R.A. No. 8042, and not to inquire into the validity of
its provisions. The CA, on the other hand, is vested with the
power of judicial review or the power to declare
unconstitutional a law or a provision thereof, such as the
subject clause.56Petitioner's interposition of the constitutional
issue before the CA was undoubtedly seasonable. The CA
was therefore remiss in failing to take up the issue in its
decision.
The third condition that the constitutional issue be critical to
the resolution of the case likewise obtains because the
monetary claim of petitioner to his lump-sum salary for the
entire unexpired portion of his 12-month employment
Does
the
subject
clause
violate
Article III of the Constitution on
of contracts?
Section
10,
non-impairment
The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes
with the stipulations in his contract on the term of his
employment and the fixed salary package he will receive 57 is
not tenable.
Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed.
The prohibition is aligned with the general principle that laws
newly enacted have only a prospective operation, 58and
cannot affect acts or contracts already perfected;59 however,
as to laws already in existence, their provisions are read into
contracts and deemed a part thereof. 60 Thus, the nonimpairment clause under Section 10, Article II is limited in
application to laws about to be enacted that would in any
way derogate from existing acts or contracts by enlarging,
abridging or in any manner changing the intention of the
parties thereto.
As aptly observed by the OSG, the enactment of R.A. No.
8042 in 1995 preceded the execution of the employment
contract between petitioner and respondents in 1998. Hence,
it cannot be argued that R.A. No. 8042, particularly the
subject clause, impaired the employment contract of the
parties. Rather, when the parties executed their 1998
employment contract, they were deemed to have
incorporated into it all the provisions of R.A. No. 8042.
But even if the Court were to disregard the timeline, the
subject clause may not be declared unconstitutional on the
ground that it impinges on the impairment clause, for the law
was enacted in the exercise of the police power of the State
to regulate a business, profession or calling, particularly the
recruitment and deployment of OFWs, with the noble end in
view of ensuring respect for the dignity and well-being of
OFWs wherever they may be employed.61 Police power
legislations adopted by the State to promote the health,
morals, peace, education, good order, safety, and general
welfare of the people are generally applicable not only to
future contracts but even to those already in existence, for all
private contracts must yield to the superior and legitimate
measures taken by the State to promote public welfare.62
Does
Article
the
subject
clause
violate
III of the Constitution, and
Section
Section
1,
18,

Article II and Section
as a protected sector?
3,
Article
XIII
on
labor
The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:
No person shall be deprived of life, liberty, or property
without due process of law nor shall any person be denied
the equal protection of the law.
Section 18,63 Article II and Section 3,64 Article XIII accord all
members of the labor sector, without distinction as to place
of deployment, full protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the
foregoing constitutional provisions translate to economic
security and parity: all monetary benefits should be equally
enjoyed by workers of similar category, while all monetary
obligations should be borne by them in equal degree; none
should be denied the protection of the laws which is enjoyed
by, or spared the burden imposed on, others in like
circumstances.65
Such rights are not absolute but subject to the inherent
power of Congress to incorporate, when it sees fit, a system
of classification into its legislation; however, to be valid, the
classification must comply with these requirements: 1) it is
based on substantial distinctions; 2) it is germane to the
purposes of the law; 3) it is not limited to existing conditions
only; and 4) it applies equally to all members of the class.66
There are three levels of scrutiny at which the Court reviews
the constitutionality of a classification embodied in a law: a)
the deferential or rational basis scrutiny in which the
challenged classification needs only be shown to be
rationally related to serving a legitimate state interest;67 b)
the middle-tier or intermediate scrutiny in which the
government must show that the challenged classification
serves an important state interest and that the classification
is at least substantially related to serving that interest; 68 and
c) strict judicial scrutiny69 in which a legislative classification
which impermissibly interferes with the exercise of a
fundamental right70 or operates to the peculiar disadvantage
of a suspect class71 is presumed unconstitutional, and the
burden is upon the government to prove that the
classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect
such interest.72
Under American jurisprudence, strict judicial scrutiny is
triggered by suspect classifications73 based on race74 or
gender75 but not when the classification is drawn along
income categories.76
It is different in the Philippine setting. In Central Bank (now
Bangko Sentral ng Pilipinas) Employee Association, Inc. v.
Bangko Sentral ng Pilipinas,77 the constitutionality of a
provision in the charter of the Bangko Sentral ng
Pilipinas (BSP), a government financial institution (GFI), was
challenged for maintaining its rank-and-file employees under

the Salary Standardization Law (SSL), even when the rankand-file employees of other GFIs had been exempted from
the SSL by their respective charters. Finding that the
disputed provision contained a suspect classification based
on salary grade, the Court deliberately employed the
standard of strict judicial scrutiny in its review of the
constitutionality of said provision. More significantly, it was in
this case that the Court revealed the broad outlines of its
judicial philosophy, to wit:
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition
and respect by the courts of justice except when they run
afoul of the Constitution. The deference stops where the
classification violates a fundamental right, or prejudices
persons
accorded
special
protection
by
the
Constitution. When these violations arise, this Court must
discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should
not suffice.
Admittedly, the view that prejudice to persons accorded
special protection by the Constitution requires a stricter
judicial scrutiny finds no support in American or English
jurisprudence. Nevertheless, these foreign decisions and
authorities are not per se controlling in this jurisdiction. At
best, they are persuasive and have been used to support
many of our decisions. We should not place undue and
fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot
come to our own decisions through the employment of our
own endowments. We live in a different ambience and must
decide our own problems in the light of our own interests and
needs, and of our qualities and even idiosyncrasies as a
people, and always with our own concept of law and justice.
Our laws must be construed in accordance with the intention
of our own lawmakers and such intent may be deduced from
the language of each law and the context of other local
legislation related thereto. More importantly, they must be
construed to serve our own public interest which is the be-all
and the end-all of all our laws. And it need not be stressed
that our public interest is distinct and different from others.
xxxx
Further, the quest for a better and more "equal" world calls
for the use of equal protection as a tool of effective judicial
intervention.
Equality is one ideal which cries out for bold attention and
action in the Constitution. The Preamble proclaims "equality"
as an ideal precisely in protest against crushing inequities in
Philippine society. The command to promote social justice in
Article II, Section 10, in "all phases of national development,"
further explicitated in Article XIII, are clear commands to the
State to take affirmative action in the direction of greater
equality. x x x [T]here is thus in the Philippine Constitution no

lack of doctrinal support for a more vigorous state effort
towards achieving a reasonable measure of equality.
Our present Constitution has gone further in guaranteeing
vital social and economic rights to marginalized groups of
society, including labor. Under the policy of social justice, the
law bends over backward to accommodate the interests of
the working class on the humane justification that those with
less privilege in life should have more in law. And the
obligation to afford protection to labor is incumbent not only
on the legislative and executive branches but also on the
judiciary to translate this pledge into a living reality. Social
justice calls for the humanization of laws and the
equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception
may at least be approximated.
xxxx
Under most circumstances, the Court will exercise judicial
restraint in deciding questions of constitutionality, recognizing
the broad discretion given to Congress in exercising its
legislative power. Judicial scrutiny would be based on the
"rational basis" test, and the legislative discretion would be
given deferential treatment.
But if the challenge to the statute is premised on the denial
of a fundamental right, or the perpetuation of prejudice
against persons favored by the Constitution with special
protection, judicial scrutiny ought to be more strict. A
weak and watered down view would call for the abdication of
this Courts solemn duty to strike down any law repugnant to
the Constitution and the rights it enshrines. This is true
whether the actor committing the unconstitutional act is a
private person or the government itself or one of its
instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor.
xxxx
In the case at bar, the challenged proviso operates on the
basis of the salary grade or officer-employee status. It is akin
to a distinction based on economic class and status, with the
higher grades as recipients of a benefit specifically withheld
from the lower grades. Officers of the BSP now receive
higher compensation packages that are competitive with the
industry, while the poorer, low-salaried employees are limited
to the rates prescribed by the SSL. The implications are quite
disturbing: BSP rank-and-file employees are paid the strictly
regimented rates of the SSL while employees higher in rank possessing higher and better education and opportunities for
career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if
not all, the rank-and-file employees consist of people whose
status and rank in life are less and limited, especially in
terms of job marketability, it is they - and not the officers who have the real economic and financial need for the
adjustment . This is in accord with the policy of the
Constitution "to free the people from poverty, provide
adequate social services, extend to them a decent standard
of living, and improve the quality of life for all." Any act of
Congress that runs counter to this constitutional desideratum
deserves strict scrutiny by this Court before it can pass
muster. (Emphasis supplied)
Imbued with the same sense of "obligation to afford
protection to labor," the Court in the present case also
employs the standard of strict judicial scrutiny, for it
perceives in the subject clause a suspect classification
prejudicial to OFWs.
Upon cursory reading, the subject clause appears facially
neutral, for it applies to all OFWs. However, a closer
examination reveals that the subject clause has a
discriminatory intent against, and an invidious impact on,
OFWs at two levels:
First, OFWs with employment contracts of less than
one year vis--vis OFWs with employment
contracts ofone year or more;
Second, among OFWs with employment contracts
of more than one year; and
Third, OFWs vis--vis local workers with fixedperiod employment;
OFWs with employment contracts of less than one
year vis--vis OFWs with employment contracts of one
year or more
As pointed out by petitioner,78 it was in Marsaman Manning
Agency,
Inc.
v.
National
Labor
Relations
Commission79 (Second Division, 1999) that the Court laid
down the following rules on the application of the periods
prescribed under Section 10(5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice
of which amount to award an illegally dismissed
overseas contract worker, i.e., whether his salaries for
the unexpired portion of his employment contract or
three (3) months salary for every year of the unexpired
term, whichever is less, comes into play only when the
employment contract concerned has a term of at least
one (1) year or more. This is evident from the words "for
every year of the unexpired term" which follows the
words "salaries x x x for three months."To follow
petitioners thinking that private respondent is entitled to
three (3) months salary only simply because it is the lesser
amount is to completely disregard and overlook some words
used in the statute while giving effect to some. This is
contrary to the well-established rule in legal hermeneutics
that in interpreting a statute, care should be taken that every
part or word thereof be given effect since the law-making
body is presumed to know the meaning of the words
employed in the statue and to have used them advisedly. Ut
res magis valeat quam pereat.80 (Emphasis supplied)
In Marsaman, the OFW involved was illegally dismissed two
months into his 10-month contract, but was awarded his

salaries for the remaining 8 months and 6 days of his
contract.
Prior to Marsaman, however, there were two cases in which
the Court made conflicting rulings on Section 10(5). One
was Asian Center for Career and Employment System and
Services v. National Labor Relations Commission(Second
Division, October 1998),81 which involved an OFW who was
awarded a two-year employment contract,but was dismissed
after working for one year and two months. The LA declared
his dismissal illegal and awarded him SR13,600.00 as lumpsum salary covering eight months, the unexpired portion of
his contract. On appeal, the Court reduced the award to
SR3,600.00 equivalent to his three months salary, this being
the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from
overseas employment without just, valid or authorized cause
is entitled to his salary for the unexpired portion of his
employment contract or for three (3) months for every year of
the unexpired term, whichever is less.
In the case at bar, the unexpired portion of private
respondents employment contract is eight (8) months.
Private respondent should therefore be paid his basic salary
corresponding to three (3) months or a total of SR3,600.82
Another was Triple-Eight Integrated Services, Inc. v. National
Labor Relations Commission (Third Division, December
1998),83 which involved an OFW (therein respondent Erlinda
Osdana) who was originally granted a 12-month contract,
which was deemed renewed for another 12 months. After
serving for one year and seven-and-a-half months,
respondent Osdana was illegally dismissed, and the Court
awarded her salaries for the entire unexpired portion of four
and one-half months of her contract.
As the foregoing matrix readily shows, the subject clause
classifies OFWs into two categories. The first category
includes OFWs with fixed-period employment contracts of
less than one year; in case of illegal dismissal, they are
entitled to their salaries for the entire unexpired portion of
their contract. The second category consists of OFWs with
fixed-period employment contracts of one year or more; in
case of illegal dismissal, they are entitled to monetary award
equivalent to only 3 months of the unexpired portion of their
contracts.
The disparity in the treatment of these two groups cannot be
discounted. In Skippers, the respondent OFW worked for
only 2 months out of his 6-month contract, but was awarded
his salaries for the remaining 4 months. In contrast, the
respondent OFWs in Oriental and PCL who had also worked
for about 2 months out of their 12-month contracts were
awarded their salaries for only 3 months of the unexpired
portion of their contracts. Even the OFWs involved
in Talidano and Univan who had worked for a longer period
of 3 months out of their 12-month contracts before being
illegally dismissed were awarded their salaries for only 3
months.
To illustrate the disparity even more vividly, the Court

assumes a hypothetical OFW-A with an employment contract
of 10 months at a monthly salary rate of US$1,000.00 and a
hypothetical OFW-B with an employment contract of 15
months with the same monthly salary rate of US$1,000.00.
Both commenced work on the same day and under the same
employer, and were illegally dismissed after one month of
work. Under the subject clause, OFW-A will be entitled to
US$9,000.00, equivalent to his salaries for the remaining 9
months of his contract, whereas OFW-B will be entitled to
only US$3,000.00, equivalent to his salaries for 3 months of
the unexpired portion of his contract, instead of
US$14,000.00 for the unexpired portion of 14 months of his
contract, as the US$3,000.00 is the lesser amount.
The disparity becomes more aggravating when the Court
takes into account jurisprudence that, prior to the
effectivity of R.A. No. 8042 on July 14, 1995, 97 illegally
dismissed OFWs, no matter how long the period of their
employment contracts, were entitled to their salaries for the
entire unexpired portions of their contracts. The matrix below
speaks for itself:
It is plain that prior to R.A. No. 8042, all OFWs, regardless of
contract periods or the unexpired portions thereof, were
treated alike in terms of the computation of their monetary
benefits in case of illegal dismissal. Their claims were
subjected to a uniform rule of computation: their basic
salaries multiplied by the entire unexpired portion of their
employment contracts.
The enactment of the subject clause in R.A. No. 8042
introduced a differentiated rule of computation of the money
claims of illegally dismissed OFWs based on their
employment periods, in the process singling out one
category whose contracts have an unexpired portion of one
year or more and subjecting them to the peculiar
disadvantage of having their monetary awards limited to their
salaries for 3 months or for the unexpired portion thereof,
whichever is less, but all the while sparing the other category
from such prejudice, simply because the latter's unexpired
contracts fall short of one year.
Among OFWs With Employment Contracts of More Than
One Year
Upon closer examination of the terminology employed in the
subject clause, the Court now has misgivings on the
accuracy of the Marsaman interpretation.
The Court notes that the subject clause "or for three (3)
months for every year of the unexpired term, whichever is
less" contains the qualifying phrases "every year" and
"unexpired term." By its ordinary meaning, the word "term"
means a limited or definite extent of time. 105 Corollarily, that
"every year" is but part of an "unexpired term" is significant in
many ways: first, the unexpired term must be at least one
year, for if it were any shorter, there would be no occasion
for such unexpired term to be measured by every year; and
second, the original term must be more than one year, for

otherwise, whatever would be the unexpired term thereof will
not reach even a year. Consequently, the more decisive
factor in the determination of when the subject clause "for
three (3) months forevery year of the unexpired
term, whichever is less" shall apply is not the length of the
original contract period as held in Marsaman,106 but the
length of the unexpired portion of the contract period -- the
subject clause applies in cases when the unexpired portion
of the contract period is at least one year, which
arithmetically requires that the original contract period be
more than one year.
Viewed in that light, the subject clause creates a sub-layer of
discrimination among OFWs whose contract periods are for
more than one year: those who are illegally dismissed with
less than one year left in their contracts shall be entitled to
their salaries for the entire unexpired portion thereof, while
those who are illegally dismissed with one year or more
remaining in their contracts shall be covered by the subject
clause, and their monetary benefits limited to their salaries
for three months only.
To concretely illustrate the application of the foregoing
interpretation of the subject clause, the Court assumes
hypothetical OFW-C and OFW-D, who each have a 24month contract at a salary rate of US$1,000.00 per month.
OFW-C is illegally dismissed on the 12th month, and OFWD, on the 13th month. Considering that there is at least 12
months remaining in the contract period of OFW-C, the
subject clause applies to the computation of the latter's
monetary benefits. Thus, OFW-C will be entitled, not to
US$12,000,00 or the latter's total salaries for the 12 months
unexpired portion of the contract, but to the lesser amount of
US$3,000.00 or the latter's salaries for 3 months out of the
12-month unexpired term of the contract. On the other hand,
OFW-D is spared from the effects of the subject clause, for
there are only 11 months left in the latter's contract period.
Thus, OFW-D will be entitled to US$11,000.00, which is
equivalent to his/her total salaries for the entire 11-month
unexpired portion.
OFWs vis--vis Local
With Fixed-Period Employment
Workers
As discussed earlier, prior to R.A. No. 8042, a uniform

system of computation of the monetary awards of illegally
dismissed OFWs was in place. This uniform system was
applicable even to local workers with fixed-term
employment.107
The earliest rule prescribing a uniform system of
computation was actually Article 299 of the Code of
Commerce (1888),108 to wit:
Article 299. If the contracts between the merchants and their
shop clerks and employees should have been made of a
fixed period, none of the contracting parties, without the
consent of the other, may withdraw from the fulfillment of
said contract until the termination of the period agreed upon.
Persons violating this clause shall be subject to indemnify

the loss and damage suffered, with the exception of the
provisions contained in the following articles.
In Reyes v. The Compaia Maritima,109 the Court applied the
foregoing provision to determine the liability of a shipping
company for the illegal discharge of its managers prior to the
expiration of their fixed-term employment. The Court therein
held the shipping company liable for the salaries of its
managers for the remainder of their fixed-term employment.
There is a more specific rule as far as seafarers are
concerned: Article 605 of the Code of Commerce which
provides:
Article 605. If the contracts of the captain and members of
the crew with the agent should be for a definite period or
voyage, they cannot be discharged until the fulfillment of
their contracts, except for reasons of insubordination in
serious matters, robbery, theft, habitual drunkenness, and
damage caused to the vessel or to its cargo by malice or
manifest or proven negligence.
Article 605 was applied to Madrigal Shipping Company, Inc.
v. Ogilvie,110 in
which the Court held the shipping company liable for the
salaries and subsistence allowance of its illegally dismissed
employees for the entire unexpired portion of their
employment contracts.
While Article 605 has remained good law up to the
present,111 Article 299 of the Code of Commerce was
replaced by Art. 1586 of the Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other
laborers hired for a certain time and for a certain work cannot
leave or be dismissed without sufficient cause, before the
fulfillment of the contract. (Emphasis supplied.)
Citing Manresa, the Court in Lemoine v. Alkan112 read the
disjunctive "or" in Article 1586 as a conjunctive "and" so as to
apply the provision to local workers who are employed for a
time certain although for no particular skill. This interpretation
of Article 1586 was reiterated in Garcia Palomar v. Hotel de
France Company.113 And in both Lemoine and Palomar, the
Court adopted the general principle that in actions for
wrongful discharge founded on Article 1586, local workers
are entitled to recover damages to the extent of the amount
stipulated to be paid to them by the terms of their contract.
On the computation of the amount of such damages, the
Court in Aldaz v. Gay114 held:
The doctrine is well-established in American jurisprudence,
and nothing has been brought to our attention to the contrary
under Spanish jurisprudence, that when an employee is
wrongfully discharged it is his duty to seek other employment
of the same kind in the same community, for the purpose of
reducing the damages resulting from such wrongful
discharge. However, while this is the general rule, the burden

of showing that he failed to make an effort to secure other
employment of a like nature, and that other employment of a
like nature was obtainable, is upon the defendant. When an
employee is wrongfully discharged under a contract of
employment his prima facie damage is the amount which he
would be entitled to had he continued in such employment
until the termination of the period. (Howard vs. Daly, 61 N. Y.,
362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School
District No. 2, 98 Mich., 43.)115 (Emphasis supplied)
On August 30, 1950, the New Civil Code took effect with new
provisions on fixed-term employment: Section 2 (Obligations
with a Period), Chapter 3, Title I, and Sections 2 (Contract of
Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title
VIII, Book IV.116 Much like Article 1586 of the Civil Code of
1889, the new provisions of the Civil Code do not expressly
provide for the remedies available to a fixed-term worker
who is illegally discharged. However, it is noted that in
Mackay Radio & Telegraph Co., Inc. v. Rich,117 the Court
carried over the principles on the payment of damages
underlying Article 1586 of the Civil Code of 1889 and applied
the same to a case involving the illegal discharge of a local
worker whose fixed-period employment contract was entered
into in 1952, when the new Civil Code was already in
effect.118
More significantly, the same principles were applied to cases
involving overseas Filipino workers whose fixed-term
employment contracts were illegally terminated, such as in
First Asian Trans & Shipping Agency, Inc. v. Ople, 119involving
seafarers who were illegally discharged. In Teknika Skills and
Trade Services, Inc. v. National Labor Relations
Commission,120 an OFW who was illegally dismissed prior to
the expiration of her fixed-period employment contract as a
baby sitter, was awarded salaries corresponding to the
unexpired portion of her contract. The Court arrived at the
same ruling in Anderson v. National Labor Relations
Commission,121 which involved a foreman hired in 1988 in
Saudi Arabia for a fixed term of two years, but who was
illegally dismissed after only nine months on the job -- the
Court awarded him salaries corresponding to 15 months, the
unexpired portion of his contract. In Asia World Recruitment,
Inc. v. National Labor Relations Commission,122 a Filipino
working as a security officer in 1989 in Angola was awarded
his salaries for the remaining period of his 12-month contract
after he was wrongfully discharged. Finally, in Vinta Maritime
Co., Inc. v. National Labor Relations Commission, 123 an OFW
whose 12-month contract was illegally cut short in the
second month was declared entitled to his salaries for the
remaining 10 months of his contract.
In sum, prior to R.A. No. 8042, OFWs and local workers with
fixed-term employment who were illegally discharged were
treated alike in terms of the computation of their money
claims: they were uniformly entitled to their salaries for the
entire unexpired portions of their contracts. But with the
enactment of R.A. No. 8042, specifically the adoption of the
subject clause, illegally dismissed OFWs with an unexpired
portion of one year or more in their employment contract
have since been differently treated in that their money claims
are subject to a 3-month cap, whereas no such limitation is

imposed on local workers with fixed-term employment.
The Court concludes that the subject clause contains a
suspect classification in that, in the computation of the
monetary benefits of fixed-term employees who are
illegally discharged, it imposes a 3-month cap on the
claim of OFWs with an unexpired portion of one year or
more in their contracts, but none on the claims of other
OFWs or local workers with fixed-term employment. The
subject clause singles out one classification of OFWs
and burdens it with a peculiar disadvantage.
There being a suspect classification involving a vulnerable
sector protected by the Constitution, the Court now subjects
the classification to a strict judicial scrutiny, and determines
whether it serves a compelling state interest through the
least restrictive means.
What constitutes compelling state interest is measured by
the scale of rights and powers arrayed in the Constitution
and calibrated by history.124 It is akin to the paramount
interest of the state125 for which some individual liberties
must give way, such as the public interest in safeguarding
health or maintaining medical standards, 126 or in maintaining
access to information on matters of public concern.127
In the present case, the Court dug deep into the records but
found no compelling state interest that the subject clause
may possibly serve.
The OSG defends the subject clause as a police power
measure "designed to protect the employment of Filipino
seafarers overseas x x x. By limiting the liability to three
months [sic], Filipino seafarers have better chance of getting
hired by foreign employers." The limitation also protects the
interest of local placement agencies, which otherwise may
be made to shoulder millions of pesos in "termination pay."128
The OSG explained further:
Often, placement agencies, their liability being solidary,
shoulder the payment of money claims in the event that
jurisdiction over the foreign employer is not acquired by the
court or if the foreign employer reneges on its obligation.
Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the
acts of the foreign employer. To protect them and to promote
their continued helpful contribution in deploying Filipino
migrant workers, liability for money are reduced under
Section 10 of RA 8042.
This measure redounds to the benefit of the migrant workers
whose welfare the government seeks to promote. The
survival of legitimate placement agencies helps [assure] the
government that migrant workers are properly deployed and
are
employed
under
decent
and
humane
conditions.129 (Emphasis supplied)

However, nowhere in the Comment or Memorandum does
the OSG cite the source of its perception of the state interest
sought to be served by the subject clause.
The OSG locates the purpose of R.A. No. 8042 in the
speech of Rep. Bonifacio Gallego in sponsorship of House
Bill No. 14314 (HB 14314), from which the law
originated;130 but the speech makes no reference to the
underlying reason for the adoption of the subject clause.
That is only natural for none of the 29 provisions in HB
14314 resembles the subject clause.
On the other hand, Senate Bill No. 2077 (SB 2077) contains
a provision on money claims, to wit:
Sec. 10. Money Claims. - Notwithstanding any provision of
law to the contrary, the Labor Arbiters of the National Labor
Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90)
calendar days after the filing of the complaint, the claims
arising out of an employer-employee relationship or by virtue
of the complaint, the claim arising out of an employeremployee relationship or by virtue of any law or contract
involving Filipino workers for overseas employment including
claims for actual, moral, exemplary and other forms of
damages.
The liability of the principal and the recruitment/placement
agency or any and all claims under this Section shall be joint
and several.
Any compromise/amicable
settlement
or
voluntary
agreement on any money claims exclusive of damages
under this Section shall not be less than fifty percent (50%)
of such money claims: Provided, That any installment
payments, if applicable, to satisfy any such compromise or
voluntary settlement shall not be more than two (2) months.
Any compromise/voluntary agreement in violation of this
paragraph shall be null and void.
Non-compliance with the mandatory period for resolutions of
cases provided under this Section shall subject the
responsible officials to any or all of the following penalties:
(1) The salary of any such official who fails to
render his decision or resolution within the
prescribed period shall be, or caused to be,
withheld until the said official complies therewith;
(2) Suspension for not more than ninety (90) days;
or
(3) Dismissal from the service with disqualification
to hold any appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall
be without prejudice to any liability which any such official
may have incurred under other existing laws or rules and
regulations as a consequence of violating the provisions of

this paragraph.
But significantly, Section 10 of SB 2077 does not provide for
any rule on the computation of money claims.
A rule on the computation of money claims containing the
subject clause was inserted and eventually adopted as the
5th paragraph of Section 10 of R.A. No. 8042. The Court
examined the rationale of the subject clause in the
transcripts of the "Bicameral Conference Committee
(Conference Committee) Meetings on the Magna Carta on
OCWs (Disagreeing Provisions of Senate Bill No. 2077 and
House Bill No. 14314)." However, the Court finds no
discernible state interest, let alone a compelling one, that is
sought to be protected or advanced by the adoption of the
subject clause.
In fine, the Government has failed to discharge its burden of
proving the existence of a compelling state interest that
would justify the perpetuation of the discrimination against
OFWs under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the
subject clause is to protect the employment of OFWs by
mitigating the solidary liability of placement agencies, such
callous and cavalier rationale will have to be rejected. There
can never be a justification for any form of government
action that alleviates the burden of one sector, but imposes
the same burden on another sector, especially when the
favored sector is composed of private businesses such as
placement agencies, while the disadvantaged sector is
composed of OFWs whose protection no less than the
Constitution commands. The idea that private business
interest can be elevated to the level of a compelling state
interest is odious.
Moreover, even if the purpose of the subject clause is to
lessen the solidary liability of placement agencies vis-avis their foreign principals, there are mechanisms already in
place that can be employed to achieve that purpose without
infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the
Recruitment and Employment of Land-Based Overseas
Workers, dated February 4, 2002, imposes administrative
disciplinary measures on erring foreign employers who
default on their contractual obligations to migrant workers
and/or their Philippine agents. These disciplinary measures
range from temporary disqualification to preventive
suspension. The POEA Rules and Regulations Governing
the Recruitment and Employment of Seafarers, dated May
23, 2003, contains similar administrative disciplinary
measures against erring foreign employers.
Resort to these administrative measures is undoubtedly the
less restrictive means of aiding local placement agencies in
enforcing the solidary liability of their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10
of R.A. No. 8042 is violative of the right of petitioner and
other OFWs to equal protection.1avvphi1
Further, there would be certain misgivings if one is to
approach the declaration of the unconstitutionality of the
subject clause from the lone perspective that the clause
directly violates state policy on labor under Section
3,131Article XIII of the Constitution.
While all the provisions of the 1987 Constitution are
presumed self-executing,132 there are some which this Court
has declared not judicially enforceable, Article XIII being
one,133 particularly Section 3 thereof, the nature of which, this
Court,
in Agabon
v.
National
Labor
Relations
Commission,134 has described to be not self-actuating:
Thus, the constitutional mandates of protection to labor and
security of tenure may be deemed as self-executing in the
sense that these are automatically acknowledged and
observed without need for any enabling legislation. However,
to declare that the constitutional provisions are enough to
guarantee the full exercise of the rights embodied therein,
and the realization of ideals therein expressed, would be
impractical, if not unrealistic. The espousal of such view
presents the dangerous tendency of being overbroad and
exaggerated. The guarantees of "full protection to labor" and
"security of tenure", when examined in isolation, are facially
unqualified, and the broadest interpretation possible
suggests a blanket shield in favor of labor against any form
of removal regardless of circumstance. This interpretation
implies an unimpeachable right to continued employment-a
utopian notion, doubtless-but still hardly within the
contemplation of the framers. Subsequent legislation is still
needed to define the parameters of these guaranteed rights
to ensure the protection and promotion, not only the rights of
the labor sector, but of the employers' as well. Without
specific and pertinent legislation, judicial bodies will be at a
loss, formulating their own conclusion to approximate at least
the aims of the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on
its own, be a source of a positive enforceable rightto
stave off the dismissal of an employee for just cause owing
to the failure to serve proper notice or hearing. As
manifested by several framers of the 1987 Constitution, the
provisions on social justice require legislative enactments for
their enforceability.135 (Emphasis added)
Thus, Section 3, Article XIII cannot be treated as a principal
source of direct enforceable rights, for the violation of which
the questioned clause may be declared unconstitutional. It
may unwittingly risk opening the floodgates of litigation to
every worker or union over every conceivable violation of so
broad a concept as social justice for labor.
It must be stressed that Section 3, Article XIII does not
directly bestow on the working class any actual enforceable
right, but merely clothes it with the status of a sector for
whom the Constitution urges protection through executive or
legislative action and judicial recognition. Its utility is best

limited to being an impetus not just for the executive and
legislative departments, but for the judiciary as well, to
protect the welfare of the working class. And it was in fact
consistent with that constitutional agenda that the Court
in Central Bank (now Bangko Sentral ng Pilipinas) Employee
Association, Inc. v. Bangko Sentral ng Pilipinas, penned by
then Associate Justice now Chief Justice Reynato S. Puno,
formulated the judicial precept that when the challenge to a
statute is premised on the perpetuation of prejudice against
persons favored by the Constitution with special protection -such as the working class or a section thereof -- the Court
may recognize the existence of a suspect classification and
subject the same to strict judicial scrutiny.
The view that the concepts of suspect classification and strict
judicial scrutiny formulated in Central Bank Employee
Association exaggerate the significance of Section 3, Article
XIII is a groundless apprehension. Central Bank applied
Article XIII in conjunction with the equal protection clause.
Article XIII, by itself, without the application of the equal
protection clause, has no life or force of its own as elucidated
in Agabon.
Along the same line of reasoning, the Court further holds that
the subject clause violates petitioner's right to substantive
due process, for it deprives him of property, consisting of
monetary benefits, without any existing valid governmental
purpose.136
The argument of the Solicitor General, that the actual
purpose of the subject clause of limiting the entitlement of
OFWs to their three-month salary in case of illegal dismissal,
is to give them a better chance of getting hired by foreign
employers. This is plain speculation. As earlier discussed,
there is nothing in the text of the law or the records of the
deliberations leading to its enactment or the pleadings of
respondent that would indicate that there is an existing
governmental purpose for the subject clause, or even just a
pretext of one.
The subject clause does not state or imply any definitive
governmental purpose; and it is for that precise reason that
the clause violates not just petitioner's right to equal
protection, but also her right to substantive due process
under Section 1,137 Article III of the Constitution.
The subject clause being unconstitutional, petitioner is
entitled to his salaries for the entire unexpired period of nine
months and 23 days of his employment contract, pursuant to
law and jurisprudence prior to the enactment of R.A. No.
8042.
On the Third Issue
Petitioner contends that his overtime and leave pay should
form part of the salary basis in the computation of his
monetary award, because these are fixed benefits that have
been stipulated into his contract.

Petitioner is mistaken.
The word salaries in Section 10(5) does not include overtime
and leave pay. For seafarers like petitioner, DOLE
Department Order No. 33, series 1996, provides a Standard
Employment Contract of Seafarers, in which salary is
understood as the basic wage, exclusive of overtime, leave
pay and other bonuses; whereas overtime pay is
compensation for all work "performed" in excess of the
regular eight hours, and holiday pay is compensation for any
work "performed" on designated rest days and holidays.
By the foregoing definition alone, there is no basis for the
automatic inclusion of overtime and holiday pay in the
computation of petitioner's monetary award, unless there is
evidence that he performed work during those periods. As
the Court held in Centennial Transmarine, Inc. v. Dela
Cruz,138
However, the payment of overtime pay and leave pay should
be disallowed in light of our ruling in Cagampan v. National
Labor Relations Commission, to wit:
The rendition of overtime work and the submission of
sufficient proof that said was actually performed are
conditions to be satisfied before a seaman could be entitled
to overtime pay which should be computed on the basis of
30% of the basic monthly salary. In short, the contract
provision guarantees the right to overtime pay but the
entitlement to such benefit must first be established.
In the same vein, the claim for the day's leave pay for the
unexpired portion of the contract is unwarranted since the
same is given during the actual service of the seamen.
Supreme Court
Manila
EN BANC
DATU MICHAEL ABAS KIDA,

in his personal capacity, and in representation of
MAGUINDANAO FEDERATION OF AUTONOMOUS
IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA
J. USMAN, JOHN ANTHONY L. LIM, JAMILON T.
ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG,
ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL,
and BASSAM ALUH SAUPI,
Petitioners,
- versus -
SENATE OF THE PHILIPPINES, represented by its

President JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, thru SPEAKER FELICIANO
BELMONTE, COMMISSION ON ELECTIONS, thru its
Chairman, SIXTO BRILLANTES, JR., PAQUITO
OCHOA, JR., Office of the President Executive
Secretary, FLORENCIO ABAD, JR., Secretary of
Budget, and ROBERTO TAN, Treasurer of the
Philippines,
Respondents.
x----------------------------------------------x
BASARI D. MAPUPUNO,
Petitioner,
- versus WHEREFORE, the Court GRANTS the Petition. The subject

clause "or for three months for every year of the unexpired
term, whichever is less" in the 5th paragraph of Section 10 of
Republic
Act
No.
8042
is DECLAREDUNCONSTITUTIONAL; and the December 8,
2004 Decision and April 1, 2005 Resolution of the Court of
Appeals are MODIFIED to the effect that petitioner
is AWARDED his salaries for the entire unexpired portion of
his employment contract consisting of nine months and 23
days computed at the rate of US$1,400.00 per month.
No costs.
SIXTO BRILLANTES, in his capacity as Chairman of

the Commission on Elections, FLORENCIO ABAD,
JR. in his capacity as Secretary of the Department of
Budget and Management, PACQUITO OCHOA, JR., in
his capacity as Executive Secretary, JUAN PONCE
ENRILE, in his capacity as Senate President, and
FELICIANO BELMONTE, in his capacity as Speaker
of the House of Representatives,
Respondents.
x----------------------------------------------x
REP. EDCEL C. LAGMAN,
Petitioner,
SO ORDERED.
DATU MICHAEL ABAD KIDA v. SENATE
659 S 270 (2011)
667 S 270 (2012)
- versus -
PAQUITO N. OCHOA, JR., in his capacity as the

Executive Secretary, and the COMMISSION ON
ELECTIONS,
Respondents.
x----------------------------------------------x

ALMARIM CENTI TILLAH, DATU
CASAN CONDING CANA, and PARTIDO
DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDPLABAN),
Petitioners,
x-----------------------------------------------------------------------------------x
DECISION
BRION, J.:
- versus -
THE COMMISSION ON ELECTIONS, through its

Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO
N. OCHOA, JR., in his capacity as Executive
Secretary, HON. FLORENCIO B. ABAD, JR., in his
capacity as Secretary of the Department of Budget
and Management, and HON. ROBERTO B. TAN, in his
capacity as Treasurer of the Philippines,
Respondents.
x----------------------------------------------x
ATTY. ROMULO B. MACALINTAL,
Petitioner,
- versus -
COMMISSION ON ELECTIONS and THE OFFICE OF

THE PRESIDENT, through EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR.,
Respondents.
x----------------------------------------------x
LUIS BAROK BIRAOGO,
Petitioner,
- versus -
THE COMMISSION ON ELECTIONS and EXECUTIVE

SECRETARY PAQUITO N. OCHOA, JR.,
Respondents.
x----------------------------------------------x
JACINTO V. PARAS,
Petitioner,
On June 30, 2011, Republic Act (RA) No. 10153,

entitled An Act Providing for the Synchronization of the
Elections in the Autonomous Region in Muslim Mindanao
(ARMM) with the National and Local Elections and for Other
Purposes was enacted. The law reset the ARMM elections
from the 8th of August 2011, to the second Monday of May
2013 and every three (3) years thereafter, to coincide with
the countrys regular national and local elections. The law as
well granted the President the power to appoint officers-incharge (OICs) for the Office of the Regional Governor, the
Regional Vice-Governor, and the Members of the Regional
Legislative Assembly, who shall perform the functions
pertaining to the said offices until the officials duly elected in
the May 2013 elections shall have qualified and assumed
office.
Even before its formal passage, the bills that
became RA No. 10153 already spawned petitions against
their validity; House Bill No. 4146 and Senate Bill No. 2756
were challenged in petitions filed with this Court. These
petitions multiplied after RA No. 10153 was passed.
Factual Antecedents
The State, through Sections 15 to 22, Article X of
the 1987 Constitution, mandated the creation of autonomous
regions in Muslim Mindanao and the Cordilleras. Section 15
states:
Section 15. There shall be created
autonomous regions in Muslim Mindanao
and
in
the Cordilleras consisting
of
provinces, cities, municipalities, and
geographical areas sharing common and
distinctive historical and cultural heritage,
economic and social structures, and other
relevant
characteristics
within
the
framework of this Constitution and the
national sovereignty as well as territorial
integrity
of
the
Republic
of
the Philippines.
- versus -
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,

and the COMMISSION ON ELECTIONS,
Respondents.
x--------------------------------------------x
MINORITY RIGHTS FORUM, PHILIPPINES, INC.,
Respondents-Intervenor.
Section 18 of the Article, on the other hand, directed

Congress to enact an organic act for these autonomous
regions to concretely carry into effect the granted autonomy.
Section 18. The Congress shall enact an
organic act for each autonomous region
with the assistance and participation of the
regional
consultative
commission
composed of representatives appointed by
the President from a list of nominees from

multisectoral bodies. The organic act shall
define the basic structure of government
for the region consisting of the executive
department and legislative assembly, both
of which shall be elective and
representative of the constituent political
units. The organic acts shall likewise
provide for special courts with personal,
family and property law jurisdiction
consistent with the provisions of this
Constitution and national laws.
The creation of the autonomous
region shall be effective when approved by
a majority of the votes cast by the
constituent units in a plebiscite called for
the purpose, provided that only provinces,
cities, and geographic areas voting
favorably in such plebiscite shall be
included in the autonomous region.
On August 1, 1989 or two years after the effectivity
of the 1987 Constitution, Congress acted through Republic
Act (RA) No. 6734 entitled An Act Providing for an Organic
Act for the Autonomous Region in Muslim Mindanao. A
plebiscite was held on November 6, 1990 as required by
Section 18(2), Article X of RA No. 6734, thus fully
establishing the Autonomous Region of Muslim Mindanao
(ARMM). The initially assenting provinces were Lanao del
Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734
scheduled the first regular elections for the regional officials
of the ARMM on a date not earlier than 60 days nor later
than 90 days after its ratification.
RA No. 9054 (entitled An Act to Strengthen and
Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, Amending for the Purpose Republic Act
No. 6734, entitled An Act Providing for the Autonomous
Region in Muslim Mindanao, as Amended) was the next
legislative act passed. This law provided further refinement
in the basic ARMM structure first defined in the original
organic act, and reset the regular elections for the ARMM
regional officials to the second Monday of September 2001.
Congress passed the next law affecting ARMM
RA No. 9140[1] - on June 22, 2001. This law reset the first
regular elections originally scheduled under RA No. 9054,
toNovember 26, 2001. It likewise set the plebiscite to ratify
RA No. 9054 to not later than August 15, 2001.
RA No. 9054 was ratified in a plebiscite held
on August
14,
2001.
The province of Basilan and Marawi City voted to join ARMM
on the same date.
RA No. 9333[2] was subsequently passed by
Congress to reset the ARMM regional elections to the
2nd Monday of August 2005, and on the same date every 3
years thereafter. Unlike RA No. 6734 and RA No. 9054, RA
No. 9333 was not ratified in a plebiscite.
Pursuant to RA No. 9333, the next ARMM regional

elections should have been held on August 8, 2011.
COMELEC had begun preparations for these elections and
had accepted certificates of candidacies for the various
regional offices to be elected. But on June 30, 2011, RA No.
10153 was enacted, resetting the ARMM elections to May
2013, to coincide with the regular national and local elections
of the country.
RA No. 10153 originated in the House of
Representatives as House Bill (HB) No. 4146, seeking the
postponement of the ARMM elections scheduled on August
8, 2011. On March 22, 2011, the House of Representatives
passed HB No. 4146, with one hundred ninety one (191)
Members voting in its favor.
After the Senate received HB No. 4146, it adopted
its own version, Senate Bill No. 2756 (SB No. 2756), on June
6, 2011. Thirteen (13) Senators voted favorably for its
passage. On June 7, 2011, the House of Representative
concurred with the Senate amendments, and on June 30,
2011, the President signed RA No. 10153 into law.
As mentioned, the early challenge to RA No. 10153
came through a petition filed with this Court G.R. No.
196271[3] - assailing the constitutionality of both HB No. 4146
and SB No. 2756, and challenging the validity of RA No.
9333 as well for non-compliance with the constitutional
plebiscite requirement. Thereafter, petitioner Basari
Mapupuno inG.R. No. 196305 filed another petition[4] also
assailing the validity of RA No. 9333.
With the enactment into law of RA No. 10153, the
COMELEC stopped its preparations for the ARMM
elections. The law gave rise as well to the filing of the
following petitions against its constitutionality:
a)
Petition for Certiorari and Prohibition[5] filed by Rep.

Edcel Lagman as a member of the House of
Representatives against Paquito Ochoa, Jr. (in his
capacity as the Executive Secretary) and the
COMELEC, docketed as G.R. No. 197221;
b)
Petition for Mandamus and Prohibition [6] filed by

Atty. Romulo Macalintal as a taxpayer against the
COMELEC, docketed as G.R. No. 197282;
c)
Petition for Certiorari and Mandamus, Injunction

and Preliminary Injunction[7] filed by Louis Barok
Biraogo against the COMELEC and Executive
Secretary Paquito N. Ochoa, Jr., docketed as G.R.
No. 197392; and
d)
Petition for Certiorari and Mandamus[8] filed by

Jacinto Paras as a member of the House of
Representatives against Executive Secretary
Paquito Ochoa, Jr. and the COMELEC, docketed
as G.R. No. 197454.
Petitioners Alamarim Centi Tillah and Datu Casan

Conding Cana as registered voters from the ARMM, with the

Partido Demokratiko Pilipino Lakas ng Bayan (a political
party with candidates in the ARMM regional elections
scheduled for August 8, 2011), also filed a Petition for
Prohibition and Mandamus[9] against the COMELEC,
docketed asG.R. No. 197280, to assail the constitutionality
of RA No. 9140, RA No. 9333 and RA No. 10153.
Subsequently, Anak Mindanao Party-List, Minority
Rights Forum Philippines, Inc. and Bangsamoro Solidarity
Movement filed their own Motion for Leave to Admit their
Motion for Intervention and Comment-in-Intervention
dated July 18, 2011. On July 26, 2011, the Court granted the
motion. In the same Resolution, the Court ordered the
consolidation of all the petitions relating to the
constitutionality of HB No. 4146, SB No. 2756, RA No. 9333,
and RA No. 10153.
I.
Whether
mandates
elections
II.
Whether the passage of RA No. 10153

violates Section 26(2), Article VI of the
1987 Constitution
A. Does the postponement of

the ARMM regular elections
constitute an amendment to
Section 7, Article XVIII of RA
No. 9054?
B. Does the requirement of a
supermajority
vote
for
amendments or revisions to
RA No. 9054 violate Section
1 and Section 16(2), Article
VI of the 1987 Constitution
and the corollary doctrine on
irrepealable laws?
On September 13, 2011, the Court issued a temporary

restraining order enjoining the implementation of RA No.
10153 and ordering the incumbent elective officials of ARMM
to continue to perform their functions should these cases not
be decided by the end of their term on September 30, 2011.
C. Does the requirement of a

plebiscite apply only in the
creation
of
autonomous
regions under paragraph 2,
Section 18, Article X of the
1987 Constitution?
The Arguments
The petitioners assailing RA No. 9140, RA No. 9333
and RA No. 10153 assert that these laws amend RA No.
9054 and thus, have to comply with the supermajority vote
and plebiscite requirements prescribed under Sections 1 and
3, Article XVII of RA No. 9094 in order to become effective.
The Issues
From the parties submissions, the following issues

were recognized and argued by the parties in the oral
arguments of August 9 and 16, 2011:
1987 Constitution
synchronization of
III. Whether the passage of RA No. 10153

requires a supermajority vote and
plebiscite
Oral
arguments
were
held
on August
9,
2011 and August 16, 2011. Thereafter, the parties were
instructed to submit their respective memoranda within
twenty (20) days.
The petitions assailing RA No. 10153 further maintain

that it is unconstitutional for its failure to comply with the
three-reading requirement of Section 26(2), Article VI of the
Constitution. Also cited as grounds are the alleged violations
of the right of suffrage of the people of ARMM, as well as the
failure to adhere to the elective and representative
character of the executive and legislative departments of the
ARMM. Lastly, the petitioners challenged the grant to the
President of the power to appoint OICs to undertake the
functions of the elective ARMM officials until the officials
elected under the May 2013 regular elections shall have
assumed office. Corrolarily, they also argue that the power of
appointment also gave the President the power of control
over the ARMM, in complete violation of Section 16, Article X
of the Constitution.
the
the
IV.
Whether RA No. 10153 violates

the autonomy granted to the ARMM
V. Whether the grant of the power to

appoint OICs violates:
A. Section 15, Article X of the 1987
Constitution
B. Section 16, Article X of the 1987
Constitution
C. Section 18, Article X of the 1987
Constitution
VI.
Whether the proposal to hold special elections

is constitutional and legal.
We shall discuss these issues in the order they are
presented above.
OUR RULING
We resolve
to DISMISS the
petitions
and
thereby UPHOLD the constitutionality of RA No. 10153 in
toto.

I. Synchronization
mandate
as
recognized
constitutional
The respondent Office of the Solicitor General (OSG)

argues that the Constitution mandates synchronization, and
in support of this position, cites Sections 1, 2 and 5, Article
XVIII (Transitory Provisions) of the 1987 Constitution, which
provides:
Section 1. The first elections of Members
of the Congress under this Constitution
shall be held on the second Monday of
May, 1987.
The first local elections shall be held on a
date to be determined by the President,
which may be simultaneous with the
election of the Members of the Congress.
It shall include the election of all Members
of the city or municipal councils in the
Metropolitan Manila area.
Section 2. The Senators, Members of the
House of Representatives and the local
officials
first
elected
under
this
Constitution shall serve until noon of June
30, 1992.
Of the Senators elected in the election in
1992, the first twelve obtaining the highest
number of votes shall serve for six year
and the remaining twelve for three years.
xxx
Section 5. The six-year term of the
incumbent President and Vice President
elected in the February 7, 1986 election
is, for purposes of synchronization of
elections, hereby extended to noon of
June 30, 1992.
The first regular elections for President
and Vice-President under this Constitution
shall be held on the second Monday of
May, 1992.
We agree with this position.
While the Constitution does not expressly state that
Congress has to synchronize national and local elections,
the clear intent towards this objective can be gleaned from
the Transitory Provisions (Article XVIII) of the Constitution,
[10]
which show the extent to which the Constitutional
Commission, by deliberately making adjustments to the
terms of the incumbent officials, sought to attain
synchronization of elections.[11]
The objective behind setting a common termination
date for all elective officials, done among others through the
shortening the terms of the twelve winning senators with the
least number of votes, is to synchronize the holding of all
future elections whether national or local to once every
three years.[12] This intention finds full support in the

discussions
during
the
Constitutional
Commission
deliberations.[13]
These Constitutional Commission exchanges, read
with the provisions of the Transitory Provisions of the
Constitution, all serve as patent indicators of the
constitutional mandate to hold synchronized national and
local elections, starting the second Monday of May, 1992 and
for all the following elections.
This Court was not left behind in recognizing the
synchronization of the national and local elections as a
constitutional mandate. In Osmea v. Commission on
Elections,[14]we explained:
It is clear from the aforequoted
provisions of the 1987 Constitution that the
terms of office of Senators, Members of
the House of Representatives, the local
officials, the President and the VicePresident have been synchronized to end
on the same hour, date and year noon
of June 30, 1992.
It is likewise evident from the
wording of the above-mentioned Sections
that the term of synchronization is used
synonymously as the phrase holding
simultaneously since this is the precise
intent in terminating their Office Tenure on
the same day or occasion. This common
termination date will synchronize future
elections to once every three years
(Bernas, the Constitution of the Republic of
the Philippines, Vol. II, p. 605).
That the election for Senators,
Members of the House of Representatives
and the local officials (under Sec. 2, Art.
XVIII) will have to be synchronized with the
election for President and Vice President
(under Sec. 5, Art. XVIII) is likewise
evident from the x x x records of the
proceedings
in
the
Constitutional
Commission. [Emphasis supplied.]
Although called regional elections, the ARMM
elections should be included among the elections to be
synchronized as it is a local election based on the wording
and structure of the Constitution.
A basic rule in constitutional construction is that the
words used should be understood in the sense that they
have in common use and given their ordinary meaning,
except when technical terms are employed, in which case
the significance thus attached to them prevails. [15] As this
Court explained in People v. Derilo,[16] [a]s the Constitution is
not primarily a lawyers document, its language should be
understood in the sense that it may have in common. Its
words should be given their ordinary meaning except where
technical terms are employed.

Understood in its ordinary sense, the word local
refers to something that primarily serves the needs of a
particular limited district, often a community or minor political
subdivision.[17] Regional elections in the ARMM for the
positions of governor, vice-governor and regional assembly
representatives obviously fall within this classification, since
they pertain to the elected officials who will serve within the
limited region of ARMM.
From the perspective of the Constitution,
autonomous regions are considered one of the forms of local
governments, as evident from Article X of the Constitution
entitled Local Government. Autonomous regions are
established and discussed under Sections 15 to 21 of this
Article the article wholly devoted to Local Government.
That an autonomous region is considered a form of local
government is also reflected in Section 1, Article X of the
Constitution, which provides:
Section 1. The territorial and political
subdivisions
of
the
Republic
of
the Philippines are the provinces, cities,
municipalities, and barangays. There shall
be autonomous regions in Muslim
Mindanao,
and
theCordilleras as
hereinafter provided.
Thus, we find the contention that the

synchronization mandated by the Constitution does not
include the regional elections of the ARMM
unmeritorious. We shall refer to synchronization in the
course of our discussions below, as this concept permeates
the consideration of the various issues posed in this case
and must be recalled time and again for its complete
resolution.
conditions before a bill can become a law:

[i] the bill has passed three readings on
separate days and [ii] it has been printed
in its final form and distributed three days
before it is finally approved.
xxx
That upon the certification of a bill
by the President, the requirement of three
readings on separate days and of printing
and distribution can be dispensed with is
supported by the weight of legislative
practice. For example, the bill defining the
certiorari jurisdiction of this Court which, in
consolidation with the Senate version,
became Republic Act No. 5440, was
passed on second and third readings in
the House of Representatives on the same
day [May 14, 1968] after the bill had been
certified by the President as urgent.
In the present case, the records show that the
President wrote to the Speaker of the House of
Representatives to certify the necessity of the immediate
enactment of a law synchronizing the ARMM elections with
the
national
and
local
elections.[20] Following
our Tolentino ruling, the Presidents certification exempted
both the House and the Senate from having to comply with
the three separate readings requirement.
On the follow-up contention that no necessity
existed for the immediate enactment of these bills since
there was no public calamity or emergency that had to be
met, again we hark back to our ruling in Tolentino:
The Court, in Tolentino v. Secretary of Finance,

explained the effect of the Presidents certification of
necessity in the following manner:
The sufficiency of the factual

basis of the suspension of the writ
of habeas corpus or declaration of martial
law Art. VII, Section 18, or the existence of
a national emergency justifying the
delegation of extraordinary powers to the
President under Art. VI, Section 23(2) is
subject to judicial review because basic
rights of individuals may be of
hazard. But the
factual
basis
of
presidential certification of bills, which
involves doing away with procedural
requirements designed to insure that
bills are duly considered by members
of Congress, certainly should elicit a
different standard of review. [Emphasis
supplied.]
The
presidential
certification
dispensed with the requirement not only of
printing but also that of reading the bill on
separate days. The phrase "except when
the President certifies to the necessity of
its immediate enactment, etc." in Art. VI,
Section 26[2] qualifies the two stated
The House of Representatives and the Senate in

the exercise of their legislative discretion gave full
recognition to the Presidents certification and promptly
enacted RA No. 10153. Under the circumstances, nothing
short of grave abuse of discretion on the part of the two
II. The Presidents Certification on the Urgency of RA

No. 10153
The petitioners in G.R. No. 197280 also challenge
the validity of RA No. 10153 for its alleged failure to comply
with Section 26(2), Article VI of the Constitution [18] which
provides that before bills passed by either the House or the
Senate can become laws, they must pass through three
readings on separate days. The exception is when the
President certifies to the necessity of the bills immediate
enactment.
[19]

houses of Congress can justify our intrusion under our power
of judicial review.[21]
The petitioners, however, failed to provide us with
any cause or justification for this course of action. Hence,
while the judicial department and this Court are not bound by
the acceptance of the President's certification by both the
House of Representatives and the Senate, prudent exercise
of our powers and respect due our co-equal branches of
government in matters committed to them by the
Constitution, caution a stay of the judicial hand.[22]
In any case, despite the Presidents certification, the
two-fold purpose that underlies the requirement for three
readings on separate days of every bill must always be
observed to enable our legislators and other parties
interested in pending bills to intelligently respond to
them. Specifically, the purpose with respect to Members of
Congress is: (1) to inform the legislators of the matters they
shall vote on and (2) to give them notice that a measure is in
progress through the enactment process.[23]
We find, based on the records of the deliberations
on the law, that both advocates and the opponents of the
proposed measure had sufficient opportunities to present
their views. In this light, no reason exists to nullify RA No.
10153 on the cited ground.
III. A. RA No. 9333 and RA No. 10153 are not
amendments to RA No. 9054
The effectivity of RA No. 9333 and RA No. 10153
has also been challenged because they did not comply with
Sections 1 and 3, Article XVII of RA No. 9054 in amending
this law. These provisions require:
Section 1. Consistent with the provisions of
the Constitution, this Organic Act may be
reamended or revised by the Congress of
the Philippines upon a vote of two-thirds
(2/3) of the Members of the House of
Representatives and of the Senate voting
separately.
Section 3. Any amendment to or revision
of this Organic Act shall become effective
only when approved by a majority of the
vote cast in a plebiscite called for the
purpose, which shall be held not earlier
than sixty (60) days or later than ninety
(90) days after the approval of such
amendment or revision.
We find no merit in this contention.
In the first place, neither RA No. 9333 nor RA No.
10153 amends RA No. 9054. As an examination of these
laws will show, RA No. 9054 only provides for the schedule
of the first ARMM elections and does not fix the date of the
regular elections. A need therefore existed for the Congress
to fix the date of the subsequent ARMM regular elections,
which it did by enacting RA No. 9333 and thereafter, RA No.
10153. Obviously, these subsequent laws RA No. 9333

and RA No. 10153 cannot be considered amendments
to RA No. 9054 as they did not change or revise any
provision in the latter law; they merely filled in a gap in RA
No. 9054 or supplemented the law by providing the date of
the subsequent regular elections.
This view that Congress thought it best to leave
the determination of the date of succeeding ARMM elections
to legislative discretion finds support in ARMMs recent
history.
To recall, RA No. 10153 is not the first law passed
that rescheduled the ARMM elections. The First Organic Act
RA No. 6734 not only did not fix the date of the
subsequent elections; it did not even fix the specific date of
the first ARMM elections,[24] leaving the date to be fixed in
another legislative enactment. Consequently, RA No. 7647,
[25]
RA No. 8176,[26] RA No. 8746,[27] RA No. 8753,[28] and RA
No. 9012[29] were all enacted by Congress to fix the dates of
the ARMM elections. Since these laws did not change or
modify any part or provision of RA No. 6734, they were not
amendments to this latter law. Consequently, there was no
need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which
lapsed into law on March 31, 2001, provided that the first
elections would be held on the second Monday of
September 2001. Thereafter, Congress passed RA No.
9140[30] to
reset
the
date
of
the
ARMM
elections. Significantly, while RA No. 9140 also scheduled
the plebiscite for the ratification of the Second Organic Act
(RA No. 9054), the new date of the ARMM regional
elections fixed in RA No. 9140 was not among the
provisions ratified in the plebiscite held to approve RA
No. 9054. Thereafter, Congress passed RA No. 9333,
[31]
which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a
plebiscite.
From these legislative actions, we see the clear
intention of Congress to treat the laws which fix the date of
the subsequent ARMM elections as separate and distinct
from the Organic Acts. Congress only acted consistently with
this intent when it passed RA No. 10153 without requiring
compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054.
III. B. Supermajority voting requirement unconstitutional
for giving RA No. 9054 the character of an
irrepealable law
Even assuming that RA No. 9333 and RA No.
10153 did in fact amend RA No. 9054, the supermajority
(2/3) voting requirement required under Section 1, Article
XVII of RA No. 9054 [32] has to be struck down for giving RA
No. 9054 the character of an irrepealable law by requiring
more than what the Constitution demands.
Section 16(2), Article VI of the Constitution provides
that a majority of each House shall constitute a quorum to

do business. In other words, as long as majority of the
members of the House of Representatives or the Senate are
present, these bodies have the quorum needed to conduct
business and hold session. Within a quorum, a vote of
majority is generally sufficient to enact laws or approve acts.
In contrast, Section 1, Article XVII of RA No. 9054
requires a vote of no less than two-thirds (2/3) of the
Members of the House of Representatives and of the
Senate, voting separately, in order to effectively amend RA
No. 9054. Clearly, this 2/3 voting requirement is higher than
what the Constitution requires for the passage of bills, and
served to restrain the plenary powers of Congress to amend,
revise or repeal the laws it had passed. The Courts
pronouncement in City of Davao v. GSIS[33] on this subject
best explains the basis and reason for the unconstitutionality:
Moreover,
it
would
be
noxious anathema
to
democratic
principles for a legislative body to have the
ability to bind the actions of future legislative
body, considering that both assemblies are
regarded with equal footing, exercising as
they do the same plenary powers. Perpetual
infallibility is not one of the attributes
desired in a legislative body, and a
legislature which attempts to forestall
future amendments or repeals of its
enactments labors under delusions of
omniscience.
xxx
A state legislature has a plenary lawmaking power over all subjects, whether
pertaining to persons or things, within its
territorial jurisdiction, either to introduce new
laws or repeal the old, unless prohibited
expressly or by implication by the federal
constitution or limited or restrained by its own.
It cannot bind itself or its successors by
enacting irrepealable laws except when so
restrained. Every legislative body may modify
or abolish the acts passed by itself or its
predecessors. This power of repeal may be
exercised at the same session at which the
original act was passed; and even while a bill
is in its progress and before it becomes a
law. This legislature cannot bind a future
legislature to a particular mode of repeal.
It cannot declare in advance the intent of
subsequent legislatures or the effect of
subsequent legislation upon existing
statutes.[34] (Emphasis ours.)
Thus, while a supermajority is not a total ban

against a repeal, it is a limitation in excess of what the
Constitution requires on the passage of bills and is
constitutionally obnoxious because it significantly constricts
the future legislators room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively

enlarged the plebiscite requirement found in
Section 18, Article X of the Constitution
The requirements of RA No. 9054 not only required
an unwarranted supermajority, but enlarged as well the
plebiscite requirement, as embodied in its Section 3, Article
XVII of that Act. As we did on the supermajority requirement,
we find the enlargement of the plebiscite requirement
required under Section 18, Article X of the Constitution to be
excessive to point of absurdity and, hence, a violation of the
Constitution.
Section 18, Article X of the Constitution states that
the plebiscite is required only for the creation of autonomous
regions and for determining which provinces, cities and
geographic areas will be included in the autonomous
regions. While the settled rule is that amendments to the
Organic Act have to comply with the plebiscite requirement in
order to become effective,[35] questions on the extent of the
matters requiring ratification may unavoidably arise because
of the seemingly general terms of the Constitution and the
obvious absurdity that would result if a plebiscite were to be
required for every statutory amendment.
Section 18, Article X of the Constitution plainly
states that The creation of the autonomous region shall be
effective when approved by the majority of the votes case by
the constituent units in a plebiscite called for the
purpose. With these wordings as standard, we interpret the
requirement to mean that only amendments to, or revisions
of, the Organic Act constitutionally-essential to the creation
of autonomous regions i.e., those aspects specifically
mentioned in the Constitution which Congress must provide
for in the Organic Act require ratification through a
plebiscite. These amendments to the Organic Act are those
that relate to: (a) the basic structure of the regional
government; (b) the regions judicial system, i.e.,
the special courts with personal, family, and property law
jurisdiction; and, (c) the grant and extent of the legislative
powers constitutionally conceded to the regional government
under Section 20, Article X of the Constitution.[36]
The date of the ARMM elections does not fall under
any of the matters that the Constitution specifically mandated
Congress to provide for in the Organic Act. Therefore, even
assuming that the supermajority votes and the plebiscite
requirements are valid, any change in the date of elections
cannot be construed as a substantial amendment of the
Organic Act that would require compliance with these
requirements.
IV. The synchronization issue
As we discussed above, synchronization of national
and local elections is a constitutional mandate that Congress
must provide for and this synchronization must include the
ARMM elections. On this point, an existing law in fact
already exists RA No. 7166 as the forerunner of the
current RA No. 10153. RA No. 7166 already provides for the
synchronization of local elections with the national and

congressional elections. Thus, what RA No. 10153 provides
is an old matter for local governments (with the exception
ofbarangay and Sanggunian Kabataan elections where the
terms are not constitutionally provided) and is technically a
reiteration of what is already reflected in the law, given that
regional elections are in reality local elections by express
constitutional recognition.[37]
To
achieve
synchronization,
Congress necessarily has to reconcile the schedule of the
ARMMs regular elections (which should have been held in
August 2011 based on RA No. 9333) with the fixed schedule
of the national and local elections (fixed by RA No. 7166 to
be held in May 2013).
During the oral arguments, the Court identified the
three options open to Congress in order to resolve this
problem. These options are: (1) to allow the elective officials
in the ARMM to remain in office in a hold over capacity,
pursuant to Section 7(1), Article VII of RA No. 9054, until
those elected in the synchronized elections assume office;
[38]
(2) to hold special elections in the ARMM, with the terms
of those elected to expire when those elected in the
synchronized elections assume office; or (3) to authorize the
President to appoint OICs, pursuant to Section 3 of RA No.
10153, also until those elected in the synchronized elections
assume office.
As will be abundantly clear in the discussion below,
Congress, in choosing to grant the President the power to
appoint OICs, chose the correct option and passed RA No.
10153 as a completely valid law.
V.
The Constitutionality of RA No. 10153

A.
Basic Underlying Premises
To fully appreciate the available options, certain

underlying
material
premises
must
be
fully
understood. The first is the extent of the powers of
Congress to legislate; thesecond is the constitutional
mandate for the synchronization of elections; and the third is
on the concept of autonomy as recognized and established
under the 1987 Constitution.
The grant of legislative power to Congress is broad,
general and comprehensive.[39] The legislative body
possesses plenary power for all purposes of civil
government.[40]Any power, deemed to be legislative by usage
and tradition, is necessarily possessed by Congress, unless
the Constitution has lodged it elsewhere. [41] Except as
limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to all
matters of general concern or common interest.[42]
The constitutional limitations on legislative power
are either express or implied. The express limitations are
generally provided in some provisions of the Declaration of
Principles and State Policies (Article 2) and in the provisions
Bill of Rights (Article 3). Other constitutional provisions
(such as the initiative and referendum clause of Article 6,
Sections 1 and 32, and the autonomy provisions of Article X)

provide their own express limitations. The implied limitations
are found in the evident purpose which was in view and the
circumstances and historical events which led to the
enactment of the particular provision as a part of organic
law.[43]
The constitutional provisions on autonomy
specifically, Sections 15 to 21 of Article X of the Constitution
constitute express limitations on legislative power as they
define autonomy, its requirements and its parameters, thus
limiting what is otherwise the unlimited power of Congress to
legislate on the governance of the autonomous region.
Of particular relevance to the issues of the present
case are the limitations posed by the prescribed basic
structure of government i.e., that the government must
have an executive department and a legislative assembly,
both of which must be elective and representative of the
constituent political units; national government, too, must not
encroach on the legislative powers granted under Section
20, Article X. Conversely and as expressly reflected in
Section 17, Article X, all powers and functions not granted
by this Constitution or by law to the autonomous regions
shall be vested in the National Government.
The totality of Sections 15 to 21 of Article X should
likewise serve as a standard that Congress must observe in
dealing with legislation touching on the affairs of the
autonomous regions. The terms of these sections leave no
doubt on what the Constitution intends the idea of self-rule
or self-government, in particular, the power to legislate on a
wide array of social, economic and administrative
matters. But equally clear under these provisions are the
permeating principles of national sovereignty and the
territorial integrity of the Republic, as expressed in the
above-quoted Section 17 and in Section 15.[44] In other
words, the Constitution and the supporting jurisprudence, as
they now stand, reject the notion of imperium et imperio[45] in
the relationship between the national and the regional
governments.
In relation with synchronization, both autonomy and
the synchronization of national and local elections are
recognized and established constitutional mandates, with
one being as compelling as the other. If their compelling
force differs at all, the difference is in their coverage;
synchronization operates on and affects the whole country,
while regional autonomy as the term suggests directly
carries a narrower regional effect although its national effect
cannot be discounted.
These underlying basic concepts characterize the
powers and limitations of Congress when it acted on RA No.
10153. To succinctly describe the legal situation that faced
Congress then, its decision to synchronize the regional
elections with the national, congressional and all other local
elections
(save
for barangay and sangguniang
kabataan elections) left it with the problem of how to
provide the ARMM with governance in the intervening
period between the expiration of the term of those elected in

August 2008 and the assumption to office twenty-one (21)
months away of those who will win in the synchronized
elections on May 13, 2013.
The problem, in other words, was for interim
measures for this period, consistent with the terms of the
Constitution and its established supporting jurisprudence,
and with the respect due to the concept of autonomy. Interim
measures, to be sure, is not a strange phenomenon in the
Philippine legal landscape. The Constitutions Transitory
Provisions themselves collectively provide measures for
transition from the old constitution to the new[46] and for the
introduction of new concepts.[47] As previously mentioned,
the adjustment of elective terms and of elections towards the
goal of synchronization first transpired under the Transitory
Provisions. The adjustments, however, failed to look far
enough or deeply enough, particularly into the problems that
synchronizing regional autonomous elections would entail;
thus, the present problem is with us today.
The creation of local government units also
represents instances when interim measures are
required. In the creation of Quezon del Sur[48] and Dinagat
Islands,[49] the creating statutes authorized the President to
appoint an interim governor, vice-governor and members of
the sangguniang panlalawigan although these positions are
essentially elective in character; the appointive officials were
to serve until a new set of provincial officials shall have been
elected and qualified.[50] A similar authority to appoint is
provided in the transition of a local government from a subprovince to a province.[51]
In all these, the need for interim measures is
dictated by necessity; out-of-the-way arrangements and
approaches were adopted or used in order to adjust to the
goal or objective in sight in a manner that does not do
violence to the Constitution and to reasonably accepted
norms. Under these limitations, the choice of measures was
a question of wisdom left to congressional discretion.
To return to the underlying basic concepts, these
concepts shall serve as the guideposts and markers in our
discussion of the options available to Congress to address
the problems brought about by the synchronization of the
ARMM elections, properly understood as interim measures
that Congress had to provide. The proper understanding of
the options as interim measures assume prime materiality
as it is under these terms that the passage of RA No.
10153 should be measured, i.e., given the constitutional
objective of synchronization that cannot legally be
faulted, did Congress gravely abuse its discretion or
violate the Constitution when it addressed through RA
No. 10153 the concomitant problems that the adjustment
of elections necessarily brought with it?
B. Holdover Option is Unconstitutional
We rule out the first option holdover for those who
were elected in executive and legislative positions in the
ARMM during the 2008-2011 term as an option that
Congress could have chosen because a holdover violates

Section 8, Article X of the Constitution. This provision states:
Section 8. The term of office of
elective local officials, except barangay
officials, which shall be determined by
law, shall be three years and no such
official shall serve for more than three
consecutive terms. [emphases ours]
Since elective ARMM officials are local officials,

they are covered and bound by the three-year term limit
prescribed by the Constitution; they cannot extend their term
through a holdover. As this Court put in Osmea v.
COMELEC:[52]
It is not competent for the
legislature to extend the term of officers
by providing that they shall hold over until
their successors are elected and qualified
where the constitution has in effect or by
clear implication prescribed the term and
when the Constitution fixes the day on
which the official term shall begin, there is
no legislative authority to continue the
office beyond that period, even though the
successors fail to qualify within the time.
In
American
Jurisprudence it has been stated
as follows:
It has been
broadly stated that the
legislature cannot, by
an act postponing the
election to fill an office
the term of which is
limited
by
the
Constitution,
extend
the
term
of
the
incumbent beyond the
period as limited by
the
Constitution.
[Emphasis ours.]
Independently of the Osmea ruling, the primacy of
the Constitution as the supreme law of the land dictates that
where the Constitution has itself made a determination or
given its mandate, then the matters so determined or
mandated should be respected until the Constitution itself is
changed by amendment or repeal through the applicable
constitutional process. A necessary corollary is that none of
the three branches of government can deviate from the
constitutional mandate except only as the Constitution itself
may allow.[53] If at all, Congress may only pass legislation
filing in details to fully operationalize the constitutional
command or to implement it by legislation if it is non-selfexecuting; this Court, on the other hand, may only interpret

the mandate if an interpretation is appropriate and called for.
[54]
In the case of the terms of local officials, their term has

been fixed clearly and unequivocally, allowing no room for
any implementing legislation with respect to the fixed term
itself and no vagueness that would allow an interpretation
from this Court. Thus, the term of three years for local
officials should stay at three (3) years as fixed by the
Constitution and cannot be extended by holdover by
Congress.
If it will be claimed that the holdover period is
effectively another term mandated by Congress, the net
result is for Congress to create a new term and to appoint
the occupant for the new term. This view like the extension
of the elective term is constitutionally infirm because
Congress cannot do indirectly what it cannot do directly, i.e.,
to act in a way that would effectively extend the term of the
incumbents. Indeed, if acts that cannot be legally done
directly can be done indirectly, then all laws would be illusory.
[55]
Congress cannot also create a new term and effectively
appoint the occupant of the position for the new term. This is
effectively an act of appointment by Congress and an
unconstitutional intrusion into the constitutional appointment
power of the President.[56] Hence, holdover whichever way
it is viewed is a constitutionally infirm option that Congress
could not have undertaken.
Jurisprudence, of course, is not without examples of
cases where the question of holdover was brought before,
and given the imprimatur of approval by, this Court. The
present case though differs significantly from past cases with
contrary rulings, particularly from Sambarani v. COMELEC,
[57]
Adap v. Comelec,[58] and Montesclaros v. Comelec,
[59]
where the Court ruled that the elective officials could hold
on to their positions in a hold over capacity.
All
these
past
cases
refer
to
elective barangay or sangguniang
kabataan officials whose terms of office are not explicitly
provided for in the Constitution; the present case, on the
other hand, refers to local elective officials the ARMM
Governor, the ARMM Vice-Governor, and the members of
the Regional Legislative Assembly whose terms fall within
the three-year term limit set by Section 8, Article X of the
Constitution. Because of their constitutionally limited term,
Congress cannot legislate an extension beyond the term for
which they were originally elected.
Even assuming that holdover is constitutionally
permissible, and there had been statutory basis for it
(namely Section 7, Article VII of RA No. 9054) in the past,
[60]
we have to remember that the rule of holdover can only
apply as an available option where no express or implied
legislative intent to the contrary exists; it cannot apply
where such contrary intent is evident.[61]
Congress, in passing RA No. 10153, made it
explicitly clear that it had the intention of suppressing the
holdover rule that prevailed under RA No. 9054 by
completely removing this provision. The deletion is a policy

decision that is wholly within the discretion of Congress to
make in the exercise of its plenary legislative powers; this
Court cannotpass upon questions of wisdom, justice or
expediency of legislation,[62] except where an attendant
unconstitutionality or grave abuse of discretion results.
C. The COMELEC has no authority to order
special elections
Another option proposed by the petitioner in G.R.
No. 197282 is for this Court to compel COMELEC to
immediately conduct special elections pursuant to Section 5
and 6 of Batas Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially
legislative in nature, as evident from, and exemplified by, the
following provisions of the Constitution:
Section 8, Article VI, applicable to the legislature,
provides:
Section 8. Unless otherwise
provided by law, the regular election of
the Senators and the Members of the
House of Representatives shall be held on
the second Monday of May. [Emphasis
ours]
Section 4(3), Article VII, with the same tenor but applicable
solely to the President and Vice-President, states:
xxxx
Section 4. xxx Unless otherwise
provided by law, the regular election for
President and Vice-President shall be held
on the second Monday of May. [Emphasis
ours]
while Section 3, Article X, on local government, provides:

Section 3. The Congress shall
enact a local government code which
shall
provide
for
xxx
the
qualifications, election, appointment and
removal, term, salaries, powers and
functions and duties of local officials[.]
[Emphases ours]
These provisions support the conclusion that no
elections may be held on any other date for the positions of
President, Vice President, Members of Congress and local
officials, except when so provided by another Act of
Congress, or upon orders of a body or officer to whom
Congress may have delegated either the power or the
authority to ascertain or fill in the details in the execution of
that power.[63]
Notably, Congress has acted on the ARMM
elections by postponing the scheduled August 2011 elections

and setting another date May 13, 2011 for regional
elections synchronized with the presidential, congressional
and other local elections. By so doing, Congress itself has
made a policy decision in the exercise of its legislative
wisdom that it shall not call special elections as an
adjustment measure in synchronizing the ARMM elections
with the other elections.
After Congress has so acted, neither the Executive
nor the Judiciary can act to the contrary by ordering special
elections instead at the call of the COMELEC. This Court,
particularly, cannot make this call without thereby
supplanting the legislative decision and effectively
legislating. To be sure, the Court is not without the power to
declare an act of Congress null and void for being
unconstitutional or for having been exercised in grave abuse
of discretion.[64] But our power rests on very narrow
ground and is merely to annul a contravening act of
Congress; it is not to supplant the decision of Congress
nor to mandate what Congress itself should have done
in the exercise of its legislative powers. Thus, contrary to
what the petition in G.R. No. 197282 urges, we cannot
compel COMELEC to call for special elections.
Furthermore, we have to bear in mind that the
constitutional power of the COMELEC, in contrast with the
power of Congress to call for, and to set the date of,
elections, is limited to enforcing and administering all laws
and regulations relative to the conduct of an election.
[65]
Statutorily, COMELEC has no power to call for the holding
of special elections unless pursuant to a specific statutory
grant. True, Congress did grant, via Sections 5 and 6 of BP
881, COMELEC with the power to postpone elections to
another date. However, this power is limited to, and can only
be exercised within, the specific terms and circumstances
provided for in the law. We quote:
Section
5. Postponement
of
election. - When for any serious cause
such
as violence, terrorism, loss
or
destruction of election paraphernalia or
records, force
majeure,
and other
analogous causes of such a nature that
the holding of a free, orderly and honest
election should become impossible in any
political
subdivision,
the
Commission, motu proprio or upon a
verified petition by any interested party,
and after due notice and hearing, whereby
all interested parties are afforded equal
opportunity to be heard, shall postpone
the election therein to a date which
should be reasonably close to the date
of the election not held, suspended or
which resulted in a failure to elect but
not later than thirty days after the
cessation of the cause for such
postponement or suspension of the
election or failure to elect.
Section 6. Failure of election. - If,

on
account
of force
majeure, violence, terrorism, fraud,
or other analogous causes the election
in any polling place has not been held
on
the
date
fixed, or had
been
suspended before the hour fixed by law
for the closing of the voting, or after the
voting and during the preparation and the
transmission of the election returns or in
the custody or canvass thereof, such
election results in a failure to elect, and
in any of such cases the failure or
suspension of election would affect the
result of the election, the Commission
shall, on the basis of a verified petition by
any interested party and after due notice
and hearing, call for the holding or
continuation of the election not held,
suspended or which resulted in a failure to
elect on a date reasonably close to the
date of the election not held, suspended or
which resulted in a failure to elect but not
later than thirty days after the cessation of
the cause of such postponement or
suspension of the election or failure to
elect. [Emphasis ours]
A close reading of Section 5 of BP 881 reveals that

it is meant to address instances where elections have
already been scheduled to take place but have to
bepostponed because of (a) violence, (b) terrorism, (c) loss
or destruction of election paraphernalia or records, (d) force
majeure, and (e) other analogous causes of such a nature
that the holding of a free, orderly and honest election should
become impossible in any political subdivision. Under the
principle of ejusdem generis, the term analogous causes
will be restricted to those unforeseen or unexpected events
that prevent the holding of the scheduled elections. These
analogous causes are further defined by the phrase of
such nature that the holding of a free, orderly and honest
election should become impossible.
Similarly, Section 6 of BP 881 applies only to those
situations where elections have already been scheduled but
do not take place because of (a) force majeure,
(b)violence,
(c) terrorism,
(d) fraud,
or
(e) other
analogous causes the election in any polling place has
not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and
the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to
elect. As in Section 5 of BP 881, Section 6 addresses
instances where the elections do not occur or had to be
suspended
because
of unexpectedand unforeseen circumstances.
In the present case, the postponement of the
ARMM elections is by law i.e., by congressional policy

and is pursuant to the constitutional mandate of
synchronization of national and local elections. By no
stretch of the imagination can these reasons be given the
same character as the circumstances contemplated by
Section 5 or Section 6 of BP 881, which all pertain to
extralegal causes that obstruct the holding of
elections. Courts, to be sure, cannot enlarge the scope of a
statute under the guise of interpretation, nor include
situations not provided nor intended by the lawmakers.
[66]
Clearly, neither Section 5 nor Section 6 of BP 881 can
apply to the present case and this Court has absolutely no
legal basis to compel the COMELEC to hold special
elections.
D. The Court has no power to shorten the terms
of elective officials
Even assuming that it is legally permissible for the

Court to compel the COMELEC to hold special elections, no
legal basis likewise exists to rule that the newly elected
ARMM officials shall hold office only until the ARMM officials
elected in the synchronized elections shall have assumed
office.
In the first place, the Court is not empowered to
adjust the terms of elective officials. Based on the
Constitution, the power to fix the term of office of elective
officials, which can be exercised only in the case
of barangay officials,[67] is specifically given to Congress.
Even Congress itself may be denied such power, as shown
when the Constitution shortened the terms of twelve
Senators obtaining the least votes,[68] and extended the
terms of the President and the Vice-President[69] in order to
synchronize elections; Congress was not granted this same
power. The settled rule is that terms fixed by the
Constitution cannot be changed by mere statute. [70] More
particularly, not even Congress and certainly not this Court,
has the authority to fix the terms of elective local officials in
the ARMM for less, or more, than the constitutionally
mandated three years[71] as this tinkering would directly
contravene Section 8, Article X of the Constitution as we
ruled in Osmena.
Thus, in the same way that the term of elective
ARMM officials cannot be extended through a holdover, the
term cannot be shortened by putting an expiration date
earlier than the three (3) years that the Constitution itself
commands. This is what will happen a term of less
than two years if a call for special elections shall
prevail. In sum, while synchronization is achieved, the result
is at the cost of a violation of an express provision of the
Constitution.
Neither we nor Congress can opt to shorten the
tenure of those officials to be elected in the ARMM elections
instead of acting on their term (where the term means the
time during which the officer may claim to hold office as of
right and fixes the interval after which the several
incumbents shall succeed one another, while the tenure
represents the term during which the incumbent actually
holds the office).[72] As with the fixing of the elective term,
neither Congress nor the Court has any legal basis to

shorten the tenure of elective ARMM officials. They would
commit an unconstitutional act and gravely abuse their
discretion if they do so.
E. The Presidents Power to Appoint OICs
The above considerations leave only Congress
chosen interim measure RA No. 10153 and the
appointment by the President of OICs to govern the ARMM
during the pre-synchronization period pursuant to Sections 3,
4 and 5 of this law as the only measure that Congress can
make. This choice itself, however, should be examined for
any attendant constitutional infirmity.
At the outset, the power to appoint is essentially
executive in nature, and the limitations on or qualifications to
the exercise of this power should be strictly construed; these
limitations or qualifications must be clearly stated in order to
be recognized.[73] The appointing power is embodied in
Section 16, Article VII of the Constitution, which states:
Section 16. The President shall
nominate and, with the consent of the
Commission on Appointments, appoint the
heads of the executive departments,
ambassadors, other public ministers and
consuls or officers of the armed forces
from the rank of colonel or naval captain,
and other officers whose appointments are
vested in him in this Constitution. He shall
also appoint all other officers of the
Government whose appointments are
not otherwise provided for by law, and
those whom he may be authorized by
law to appoint. The Congress may, by
law, vest the appointment of other officers
lower in rank in the President alone, in the
courts, or in the heads of departments,
agencies, commissions, or boards.
[emphasis ours]
This provision classifies into four groups the officers
that the President can appoint. These are:
First, the heads of the executive departments;
ambassadors; other public ministers and consuls; officers of
the Armed Forces of the Philippines, from the rank of colonel
or naval captain; and other officers whose appointments are
vested in the President in this Constitution;
Second, all other officers of the government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be
authorized by law to appoint; and
Fourth, officers lower in rank whose appointments
the Congress may by law vest in the President alone.[74]

Since the Presidents authority to appoint OICs
emanates from RA No. 10153, it falls under the third group of
officials that the President can appoint pursuant to Section
16, Article VII of the Constitution. Thus, the assailed
law facially rests on clear constitutional basis.
If at all, the gravest challenge posed by the petitions
to the authority to appoint OICs under Section 3 of RA No.
10153 is the assertion that the Constitution requires that the
ARMM executive and legislative officials to be elective and
representative of the constituent political units. This
requirement indeed is an express limitation whose nonobservance in the assailed law leaves the appointment of
OICs constitutionally defective.
After fully examining the issue, we hold that this
alleged constitutional problem is more apparent than real
and becomes very real only if RA No. 10153 were to
bemistakenly read as a law that changes the elective
and representative character of ARMM positions. RA No.
10153, however, does not in any way amend what the
organic law of the ARMM (RA No. 9054) sets outs in terms
of structure of governance. What RA No. 10153 in fact only
does is to appoint officers-in-charge for the Office of the
Regional Governor, Regional Vice Governor and Members
of the Regional Legislative Assembly who shall perform the
functions pertaining to the said offices until the officials duly
elected in the May 2013 elections shall have qualified and
assumed office. This power is far different from appointing
elective ARMM officials for the abbreviated term ending on
the assumption to office of the officials elected in the May
2013 elections.
As we have already established in our discussion of
the supermajority and plebiscite requirements, the legal
reality is that RA No. 10153 did not amend RA No.
9054. RA No. 10153, in fact, provides only for
synchronization of elections and for the interim
measures that must in the meanwhile prevail. And this is
how RA No. 10153 should be read in the manner it was
written and based on its unambiguous facial terms. [75] Aside
from its order for synchronization, it is purely and
simply an interim measure responding to the
adjustments that the synchronization requires.
Thus, the appropriate question to ask is whether the
interim measure is an unreasonable move for Congress to
adopt, given the legal situation that the synchronization
unavoidably brought with it. In more concrete terms and
based on the above considerations, given the plain
unconstitutionality of providing for a holdover and the
unavailability
of
constitutional possibilities
for
lengthening or shortening the term of the elected ARMM
officials, is the choice of the Presidents power to
appoint for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of
the Constitution an unconstitutional or unreasonable
choice for Congress to make?
Admittedly, the grant of the power to the
President under other situations or where the power of
appointment would extend beyond the adjustment period for

synchronization would be to foster a government that is not
democratic and republican. For then, the peoples right to
choose the leaders to govern them may be said to
besystemically withdrawn to the point of fostering an
undemocratic regime. This is the grant that would frontally
breach the elective and representative governance
requirement of Section 18, Article X of the Constitution.
But this conclusion would not be true under the very
limited circumstances contemplated in RA No. 10153 where
the period is fixed and, more importantly, the terms of
governance both under Section 18, Article X of the
Constitution and RA No. 9054 will not systemically be
touched nor affected at all. To repeat what has previously
been said, RA No. 9054 will govern unchanged and
continuously, with full effect in accordance with the
Constitution, save only for the interim and temporary
measures that synchronization of elections requires.
Viewed from another perspective, synchronization
will temporarily disrupt the election process in a local
community, the ARMM, as well as the communitys choice of
leaders, but this will take place under a situation of necessity
and as an interim measure in the manner that interim
measures have been adopted and used in the creation of
local government units[76] and the adjustments of subprovinces to the status of provinces.[77] These measures, too,
are used in light of the wider national demand for the
synchronization of elections
(considered vis--vis the
regional interests involved). The adoption of these
measures, in other words, is no different from the exercise by
Congress of the inherent police power of the State, where
one of the essential tests is the reasonableness of the
interim measure taken in light of the given circumstances.
Furthermore, the representative character of the
chosen leaders need not necessarily be affected by the
appointment of OICs as this requirement is really a function
of the appointment process; only the elective aspect shall
be supplanted by the appointment of OICs. In this regard,
RA No. 10153 significantly seeks to address concerns
arising from the appointments by providing, under Sections
3, 4 and 5 of the assailed law, concrete terms in the
Appointment of OIC, the Manner and Procedure of
Appointing OICs, and their Qualifications.
Based on these considerations, we hold that RA
No. 10153 viewed in its proper context is a law that is not
violative of the Constitution (specifically, its autonomy
provisions), and one that is reasonable as well under the
circumstances.
VI. Other Constitutional Concerns
Outside of the above concerns, it has been argued
during the oral arguments that upholding the constitutionality
of RA No. 10153 would set a dangerous precedent of giving
the President the power to cancel elections anywhere in the
country, thus allowing him to replace elective officials with
OICs.

This claim apparently misunderstands that an
across-the-board cancellation of elections is a matter for
Congress, not for the President, to address. It is a power that
falls within the powers of Congress in the exercise of its
legislative powers. Even Congress, as discussed above, is
limited in what it can legislatively undertake with respect to
elections.
If RA No. 10153 cancelled the regular August 2011
elections, it was for a very specific and limited purpose the
synchronization of elections. It was a temporary means to a
lasting end the synchronization of elections. Thus, RA No.
10153 and the support that the Court gives this legislation
are likewise clear and specific, and cannot be transferred or
applied to any other cause for the cancellation of elections.
Any other localized cancellation of elections and call for
special elections can occur only in accordance with the
power already delegated by Congress to the COMELEC, as
above discussed.
Given that the incumbent ARMM elective officials
cannot continue to act in a holdover capacity upon the
expiration of their terms, and this Court cannot compel the
COMELEC to conduct special elections, the Court now has
to deal with the dilemma of a vacuum in governance in the
ARMM.
To emphasize the dire situation a vacuum brings, it
should not be forgotten that a period of 21 months or close
to 2 years intervenes from the time that the incumbent
ARMM elective officials terms expired and the time the new
ARMM elective officials begin their terms in 2013. As the
lessons of our Mindanao history past and current teach
us, many developments, some of them critical and adverse,
can transpire in the countrys Muslim areas in this span of
time in the way they transpired in the past. [78] Thus, it would
be reckless to assume that the presence of an acting ARMM
Governor, an acting Vice-Governor and a fully functioning
Regional Legislative Assembly can be done away with even
temporarily. To our mind, the appointment of OICs under the
present circumstances is an absolute necessity.
Significantly, the grant to the President of the power
to appoint OICs to undertake the functions of the elective
members of the Regional Legislative Assembly is neither
novel nor innovative. We hark back to our earlier
pronouncement in Menzon v. Petilla, etc., et al.:[79]
It may be noted that under
Commonwealth Act No. 588 and the
Revised Administrative Code of 1987, the
President is empowered to make
temporary appointments in certain public
offices, in case of any vacancy that may
occur. Albeit both laws deal only with
the filling of vacancies in appointive
positions. However, in the absence of
any contrary provision in the Local
Government Code and in the best
interest of public service, we see no
cogent reason why the procedure thus
outlined by the two laws may not be

similarly applied in the present case.
The respondents contend that the
provincial board is the correct appointing
power. This argument has no merit. As
between
the
President
who
has
supervision over local governments as
provided by law and the members of the
board who are junior to the vice-governor,
we have no problem ruling in favor of the
President, until the law provides otherwise.
A vacancy creates an anomalous
situation and finds no approbation under
the law for it deprives the constituents of
their
right
of
representation
and
governance in their own local government.
In
a
republican
form
of
government, the majority rules through
their chosen few, and if one of them is
incapacitated or absent, etc., the
management of governmental affairs is, to
that
extent,
may
be
hampered. Necessarily, there will be a
consequent delay in the delivery of
basic services to the people of Leyte if
the Governor or the Vice-Governor is
missing.[80](Emphasis ours.)
As in Menzon, leaving the positions of ARMM
Governor, Vice Governor, and members of the Regional
Legislative Assembly vacant for 21 months, or almost 2
years, would clearly cause disruptions and delays in the
delivery of basic services to the people, in the proper
management of the affairs of the regional government, and in
responding to critical developments that may arise. When
viewed in this context, allowing the President in the exercise
of his constitutionally-recognized appointment power to
appoint OICs is, in our judgment, a reasonable measure to
take.
B. Autonomy in the ARMM
It is further argued that while synchronization may
be constitutionally mandated, it cannot be used to defeat or
to impede the autonomy that the Constitution granted to the
ARMM. Phrased in this manner, one would presume that
there exists a conflict between two recognized Constitutional
mandates synchronization and regional autonomy such
that it is necessary to choose one over the other.
We find this to be an erroneous approach that
violates a basic principle in constitutional construction ut
magis valeat quam pereat: that the Constitution is to be
interpreted as a whole,[81] and one mandate should not be
given importance over the other except where the primacy of
one over the other is clear.[82] We refer to the Courts
declaration in Ang-Angco v. Castillo, et al.,[83] thus:

A provision of the constitution
should not be construed in isolation from
the rest. Rather, the constitution must be
interpreted
as
a
whole,
and
apparently, conflicting
provisions
should be reconciled and harmonized
in a manner that may give to all of them
full force and effect. [Emphasis supplied.]
Synchronization is an interest that is as constitutionally
entrenched as regional autonomy. They are interests that
this Court should reconcile and give effect to, in the way that
Congress did in RA No. 10153 which provides the measure
to transit to synchronized regional elections with the least
disturbance
on
the
interests
that
must
be
respected. Particularly, regional autonomy will be respected
instead of being sidelined, as the law does not in any way
alter, change or modify its governing features, except in a
very temporary manner and only as necessitated by the
attendant circumstances.
Elsewhere, it has also been argued that the ARMM
elections should not be synchronized with the national and
local elections in order to maintain the autonomy of the
ARMM and insulate its own electoral processes from the
rough and tumble of nationwide and local elections. This
argument leaves us far from convinced of its merits.
As heretofore mentioned and discussed, while
autonomous regions are granted political autonomy, the
framers of the Constitution never equated autonomy with
independence. The ARMM as a regional entity thus
continues to operate within the larger framework of the State
and is still subject to the national policies set by the national
government, save only for those specific areas reserved by
the Constitution for regional autonomous determination. As
reflected during the constitutional deliberations of the
provisions on autonomous regions:
Mr. Bennagen. xxx We do not see
here a complete separation from the
central government, but rather an efficient
working
relationship
between
the
autonomous region and the central
government. We see this as an effective
partnership, not a separation.
Constitution and the national sovereignty as well as the

territorial integrity of the Republic of the Philippines.
Interestingly, the framers of the Constitution initially
proposed to remove Section 17 of Article X, believing it to be
unnecessary in light of the enumeration of powers granted to
autonomous regions in Section 20, Article X of the
Constitution. Upon further reflection, the framers decided to
reinstate the provision in order to make it clear, once and for
all, that these are the limits of the powers of the autonomous
government. Those not enumerated are actually to be
exercised by the national government[.][85] Of note is the
Courts
pronouncement
in Pimentel,
Jr.
v.
Hon.
Aguirre[86] which we quote:
Under the Philippine concept of
local autonomy, the national government
has not completely relinquished all its
powers over local governments, including
autonomous regions. Only administrative
powers over local affairs are delegated to
political subdivisions. The purpose of the
delegation is to make governance more
directly responsive and effective at the
local levels. In turn, economic, political
and social development at the smaller
political units are expected to propel social
and
economic
growth
and
development. But to enable the country
to develop as a whole, the programs
and policies effected locally must be
integrated and coordinated towards a
common national goal. Thus, policysetting for the entire country still lies in
the President and Congress. [Emphasis
ours.]
In other words, the autonomy granted to the ARMM
cannot be invoked to defeat national policies and concerns.
Since the synchronization of elections is not just a regional
concern but a national one, the ARMM is subject to it; the
regional autonomy granted to the ARMM cannot be used to
exempt the region from having to act in accordance with a
national policy mandated by no less than the Constitution.
Conclusion
Mr. Romulo. Therefore, complete
autonomy is not really thought of as
complete independence.
Mr. Ople. We define it as a
measure of self-government within the
larger political framework of the nation.
[84]
[Emphasis supplied.]
This exchange of course is fully and expressly reflected in
the above-quoted Section 17, Article X of the Constitution,
and by the express reservation under Section 1 of the same
Article that autonomy shall be within the framework of this
Congress acted within its powers and pursuant to a

constitutional mandate the synchronization of national and
local elections when it enacted RA No. 10153. This Court
cannot question the manner by which Congress undertook
this task; the Judiciary does not and cannot pass upon
questions of wisdom, justice or expediency of legislation.
[87]
As judges, we can only interpret and apply the law and,
despite our doubts about its wisdom, cannot repeal or
amend it.[88]
Nor can the Court presume to dictate the means by
which Congress should address what is essentially a
legislative problem. It is not within the Courts power to

enlarge or abridge laws; otherwise, the Court will be guilty of
usurping the exclusive prerogative of Congress.[89] The
petitioners, in asking this Court to compel COMELEC to hold
special elections despite its lack of authority to do so, are
essentially asking us to venture into the realm of judicial
legislation, which is abhorrent to one of the most basic
principles of a republican and democratic government the
separation of powers.
The petitioners allege, too, that we should act
because Congress acted with grave abuse of discretion in
enacting RA No. 10153. Grave abuse of discretion is such
capricious and whimsical exercise of judgment that is patent
and gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform a duty enjoined by law or to act at
all in contemplation of the law as where the power is
exercised in an arbitrary and despotic manner by reason of
passion and hostility.[90]
We find that Congress, in passing RA No. 10153,
acted strictly within its constitutional mandate. Given an
array of choices, it acted within due constitutional bounds
and with marked reasonableness in light of the necessary
adjustments that synchronization demands. Congress,
therefore, cannot be accused of any evasion of a positive
duty or of a refusal to perform its duty. We thus find no
reason to accord merit to the petitioners claims of grave
abuse of discretion.
On the general claim that RA No. 10153 is
unconstitutional, we can only reiterate the established rule
that every statute is presumed valid. [91] Congress, thus, has
in its favor the presumption of constitutionality of its acts, and
the party challenging the validity of a statute has the onerous
task of rebutting this presumption. [92] Any reasonable doubt
about the validity of the law should be resolved in favor of its
constitutionality.[93] As this Court declared in Garcia v.
Executive Secretary:[94]
The policy of the courts is to
avoid ruling on constitutional questions
and to presume that the acts of the
political departments are valid in the
absence of a clear and unmistakable
showing to the contrary. To doubt is to
sustain. This presumption is based on the
doctrine of separation of powers which
enjoins upon each department a becoming
respect for the acts of the other
departments. The theory is that as the
joint act of Congress and the President
of the Philippines, a law has been
carefully studied and determined to be
in accordance with the fundamental law
before
it
was
finally
enacted.
[95]
[Emphasis ours.]
Given the failure of the petitioners to rebut the
presumption of constitutionality in favor of RA No. 10153, we
must support and confirm its validity.
WHEREFORE,
premises
considered,
we DISMISS the consolidated petitions assailing the validity
of RA No. 10153 for lack of merit, and UPHOLD the
constitutionality of this law. We likewise LIFT the temporary
restraining order we issued in our Resolution of September
13, 2011. No costs.
SO ORDERED.

Supreme Court
Manila
EN BANC
DATU MICHAEL ABAS KIDA,
in his personal capacity, and in representation
of MAGUINDANAO FEDERATION OF
AUTONOMOUS IRRIGATORS ASSOCIATION,
INC., HADJI MUHMINA J. USMAN, JOHN
ANTHONY L. LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M. KALANG, ALIH ALSAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and
BASSAM ALUH SAUPI,
Petitioners,
- versus SENATE OF THE PHILIPPINES, represented by
its President JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, thru SPEAKER FELICIANO
BELMONTE, COMMISSION ON ELECTIONS, thru
its Chairman, SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., Office of the President
Executive Secretary, FLORENCIO ABAD, JR.,
Secretary of Budget, and ROBERTO TAN,
Treasurer of the Philippines,
Respondents.
X----------------------X
BASARI D. MAPUPUNO,
Petitioner,
- versus SIXTO BRILLANTES, in his capacity as
Chairman of the Commission on Elections,
FLORENCIO ABAD, JR. in his capacity as
Secretary of the Department of Budget and
Management, PAQUITO OCHOA, JR., in his
capacity as Executive Secretary, JUAN PONCE
ENRILE, in his capacity as Senate President,
and FELICIANO BELMONTE, in his capacity as
Speaker of the House of Representatives,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - XREP. EDCEL C.
LAGMAN,
Petitioner,
- versus -

PAQUITO N. OCHOA, JR., in his capacity as the
Executive Secretary, and the COMMISSION ON
ELECTIONS,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - XALMARIM CENTI
TILLAH, DATU
CASAN CONDING CANA, and PARTIDO
DEMOKRATIKO PILIPINO LAKAS NG BAYAN
(PDP-LABAN),
Petitioners,
MINORITY RIGHTS FORUM, PHILIPPINES, INC.,

Respondents-Intervenor.
x----------------------------------------------------------------------------------------x
RESOLUTION
BRION, J.:
- versus THE COMMISSION ON ELECTIONS, through its

Chairman, SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary, HON. FLORENCIO B.
ABAD, JR., in his capacity as Secretary of the
Department of Budget and Management, and
HON. ROBERTO B. TAN, in his capacity as
Treasurer of the Philippines,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - XATTY. ROMULO
B. MACALINTAL,
Petitioner,
- versus COMMISSION ON ELECTIONS and THE OFFICE
OF THE PRESIDENT, through EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - XLOUIS BAROK
C. BIRAOGO,
Petitioner,
- versus THE COMMISSION ON ELECTIONS and
EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR.,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - XJACINTO V.
PARAS,
Petitioner,
We resolve: (a) the motion for reconsideration filed

by petitioners Datu Michael Abas Kida, et al. in G.R. No.
196271; (b) the motion for reconsideration filed by petitioner
Rep. Edcel Lagman in G.R. No. 197221; (c) the ex
abundante ad cautelam motion for reconsideration filed by
petitioner Basari Mapupuno in G.R. No. 196305; (d) the
motion for reconsideration filed by petitioner Atty. Romulo
Macalintal in G.R. No. 197282; (e) the motion for
reconsideration filed by petitioners Almarim Centi Tillah, Datu
Casan Conding Cana and Partido Demokratiko Pilipino
Lakas ng Bayan in G.R. No. 197280; (f) the manifestation
and motion filed by petitioners Almarim Centi Tillah, et al. in
G.R. No. 197280; and (g) the very urgent motion to issue
clarificatory resolution that the temporary restraining order
(TRO) is still existing and effective.
These motions assail our Decision dated October
18, 2011, where we upheld the constitutionality of Republic
Act (RA) No. 10153. Pursuant to the constitutional mandate
of synchronization, RA No. 10153 postponed the regional
elections in the Autonomous Region in Muslim Mindanao
(ARMM) (which were scheduled to be held on the second
Monday of August 2011) to the second Monday of May 2013
and recognized the Presidents power to appoint officers-incharge (OICs) to temporarily assume these positions upon
the expiration of the terms of the elected officials.
The Motions for Reconsideration
The petitioners in G.R. No. 196271 raise the following
grounds in support of their motion:
I.
THE HONORABLE COURT

ERRED IN CONCLUDING THAT
THE ARMM ELECTIONS ARE
LOCAL
ELECTIONS,
CONSIDERING
THAT
THE
CONSTITUTION GIVES THE
ARMM A SPECIAL STATUS AND
IS SEPARATE AND DISTINCT
FROM
ORDINARY
LOCAL
GOVERNMENT UNITS.
II.
R.A. 10153 AND R.A. 9333

AMEND THE ORGANIC ACT.
III.
THE
SUPERMAJORITY
PROVISIONS
OF
THE
- versus -
EXECUTIVE SECRETARY PAQUITO N. OCHOA,

JR., and the COMMISSION ON ELECTIONS,
Respondents.
x-----------------------------------------x

ORGANIC ACT (R.A. 9054) ARE
NOT IRREPEALABLE LAWS.
IV.
V.
SECTION 3, ARTICLE XVII OF

R.A. 9054 DOES NOT VIOLATE
SECTION 18, ARTICLE X OF
THE CONSTITUTION.
II.
III.
IV.
THE CONSTITUTION DOES

NOT
PROSCRIBE
THE
HOLDOVER
OF
ARMM
ELECTED OFFICIALS PENDING
THE
ELECTION
AND
QUALIFICATION
OF
THEIR
SUCCESSORS.
V.
THE
RULING
IN OSMENA DOES NOT APPLY
TO ARMM ELECTED OFFICIALS
WHOSE TERMS OF OFFICE
ARE NOT PROVIDED FOR BY
THE
CONSTITUTION
BUT
PRESCRIBED
BY
THE
ORGANIC ACTS.
VI.
THE REQUIREMENT OF A
SUPERMAJORITY OF VOTES
IN
THE
HOUSE
OF
REPRESENTATIVES AND THE
SENATE FOR THE VALIDITY OF
A SUBSTANTIVE AMENDMENT
OR
REVISION
OF
THE
ORGANIC ACTS DOES NOT
IMPOSE AN IRREPEALABLE
LAW.
VII.
THE REQUIREMENT OF A
PLEBISCITE
FOR
THE
EFFECTIVITY
OF
A
SUBSTANTIVE
AMENDMENT
OR
REVISION
OF
THE
ORGANIC ACTS DOES NOT
UNDULY
EXPAND
THE
PLEBISCITE
REQUIREMENT
OF THE CONSTITUTION.
VIII.
SYNCHRONIZATION OF THE
ARMM ELECTION WITH THE
NATIONAL
AND
LOCAL
ELECTIONS IS NOT MANDATED
BY THE CONSTITUTION.
IX.
THE COMELEC HAS THE

AUTHORITY TO HOLD AND
CONDUCT
SPECIAL
ELECTIONS IN ARMM, AND
THE ENACTMENT OF AN
IMPROVIDENT
AND
UNCONSTITUTIONAL STATUTE
IS AN ANALOGOUS CAUSE
WARRANTING
COMELECS
HOLDING
OF
SPECIAL
ELECTIONS.[2] (italics supplied)
BALANCE OF INTERESTS
TILT IN FAVOR OF THE
DEMOCRATIC PRINCIPLE[.][1]
The petitioner in G.R. No. 197221 raises similar

grounds, arguing that:
I.
OVER THE ARMM, THEREBY

NEGATING THE AWESOME
POWER TO APPOINT AND
REMOVE OICs OCCUPYING
ELECTIVE POSITIONS.
THE ELECTIVE REGIONAL

EXECUTIVE AND LEGISLATIVE
OFFICIALS OF ARMM CANNOT
BE CONSIDERED AS OR
EQUATED
WITH
THE
TRADITIONAL
LOCAL
GOVERNMENT OFFICIALS IN
THE LOCAL GOVERNMENT
UNITS (LGUs) BECAUSE (A)
THERE
IS
NO
EXPLICIT
CONSTITUTIONAL PROVISION
ON SUCH PARITY; AND (B) THE
ARMM IS MORE SUPERIOR
THAN LGUs IN STRUCTURE,
POWERS AND AUTONOMY,
AND CONSEQUENTLY IS A
CLASS OF ITS OWN APART
FROM TRADITIONAL LGUs.
THE UNMISTAKABLE AND
UNEQUIVOCAL
CONSTITUTIONAL
MANDATE
FOR
AN
ELECTIVE
AND
REPRESENTATIVE EXECUTIVE
DEPARTMENT
AND
LEGISLATIVE ASSEMBLY IN
ARMM
INDUBITABLY
PRECLUDES
THE
APPOINTMENT
BY
THE
PRESIDENT OF OFFICERS-INCHARGE
(OICs),
ALBEIT
MOMENTARY OR TEMPORARY,
FOR THE POSITIONS OF ARMM
GOVERNOR, VICE GOVERNOR
AND
MEMBERS
OF THE
REGIONAL ASSEMBLY.
THE
PRESIDENTS
APPOINTING
POWER
IS
LIMITED
TO
APPOINTIVE
OFFICIALS AND DOES NOT
EXTEND
TO
ELECTIVE
OFFICIALS EVEN AS THE
PRESIDENT IS ONLY VESTED
WITH SUPERVISORY POWERS

xxxx
The petitioner in G.R. No. 196305 further asserts
that:
I.
BEFORE THE COURT MAY

CONSTRUE OR INTERPRET A
STATUTE,
IT
IS
A
CONDITION SINE
QUA
NON THAT THERE BE DOUBT
OR
AMBIGUITY
IN
ITS
LANGUAGE.
THE TRANSITORY PROVISIONS
HOWEVER ARE CLEAR AND
UNAMBIGUOUS: THEY REFER
TO THE 1992 ELECTIONS AND
TURN-OVER OF ELECTIVE
OFFICIALS.
IN THUS RECOGNIZING A
SUPPOSED INTENT OF THE
FRAMERS, AND APPLYING THE
SAME TO ELECTIONS 20
YEARS
AFTER,
THE
HONORABLE
SUPREME
COURT
MAY
HAVE
VIOLATED THE FOREMOST
RULE
IN
STATUTORY
CONSTRUCTION.
xxxx
II.
THE HONORABLE COURT

SHOULD HAVE CONSIDERED
THAT RA 9054, AN ORGANIC
ACT, WAS COMPLETE IN
ITSELF. HENCE, RA 10153
SHOULD BE CONSIDERED TO
HAVE
BEEN
ENACTED
PRECISELY TO AMEND RA
9054.
V.
THE HONORABLE COURT

COMMITTED
A
SERIOUS
ERROR IN DECLARING THE
HOLD-OVER
OF
ARMM
ELECTIVE
OFFICIALS
UNCONSTITUTIONAL.
xxxx
VI.
THE HONORABLE COURT

COMMITTED
A
SERIOUS
ERROR IN UPHOLDING THE
APPOINTMENT OF OFFICERSIN-CHARGE.[3] (italics
and
underscoring supplied)
The petitioner in G.R. No. 197282 contends that:
A.
ASSUMING WITHOUT CONCEDING
THAT THE APPOINTMENT OF OICs FOR
THE REGIONAL GOVERNMENT OF THE
ARMM IS NOT UNCONSTITUTIONAL TO
BEGIN WITH, SUCH APPOINTMENT OF
OIC
REGIONAL
OFFICIALS
WILL
CREATE A FUNDAMENTAL CHANGE IN
THE BASIC STRUCTURE OF THE
REGIONAL GOVERNMENT SUCH THAT
R.A. NO. 10153 SHOULD HAVE BEEN
SUBMITTED TO A PLEBISCITE IN THE
ARMM FOR APPROVAL BY ITS PEOPLE,
WHICH PLEBISCITE REQUIREMENT
CANNOT BE CIRCUMVENTED BY
SIMPLY
CHARACTERIZING
THE
PROVISIONS OF R.A. NO. 10153 ON
APPOINTMENT OF OICs AS AN
INTERIM MEASURE.
xxxx
B.
III.
THE HONORABLE COURT

MAY HAVE COMMITTED A
SERIOUS
ERROR
IN
DECLARING THE 2/3 VOTING
REQUIREMENT SET FORTH IN
RA
9054
AS
UNCONSTITUTIONAL.
xxxx
IV.
THE HONORABLE COURT

MAY HAVE COMMITTED A
SERIOUS ERROR IN HOLDING
THAT A PLEBISCITE IS NOT
NECESSARY IN AMENDING
THE ORGANIC ACT.
THE HONORABLE COURT ERRED IN

RULING THAT THE APPOINTMENT BY
THE PRESIDENT OF OICs FOR THE
ARMM REGIONAL GOVERNMENT IS
NOT
VIOLATIVE
OF
THE
CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED
IN R.A. NO. 9054 DOES NOT VIOLATE
THE CONSTITUTION, AND BEFORE
THEIR SUCCESSORS ARE ELECTED IN
EITHER AN ELECTION TO BE HELD AT
THE SOONEST POSSIBLE TIME OR IN

MAY 2013, THE SAID INCUMBENT
ARMM REGIONAL OFFICIALS MAY
VALIDLY CONTINUE FUNCTIONING AS
SUCH IN A HOLDOVER CAPACITY IN
ACCORDANCE WITH SECTION 7,
ARTICLE VII OF R.A. NO. 9054.
(b)
Does RA No. 10153 amend RA No.

9054? If so, does RA No. 10153 have to
comply with the supermajority vote and
plebiscite requirements?
(c)
Is the holdover provision in RA No. 9054

constitutional?
(d)
Does the COMELEC have the power to

call for special elections in ARMM?
(e)
Does granting the President the power

to appoint OICs violate the elective and
representative nature of ARMM regional
legislative and executive offices?
(f)
Does the appointment power granted to

the President exceed the Presidents
supervisory powers over autonomous
regions?
D.
WITH THE CANCELLATION OF THE
AUGUST 2011 ARMM ELECTIONS,
SPECIAL
ELECTIONS
MUST
IMMEDIATELY BE HELD FOR THE
ELECTIVE REGIONAL OFFICIALS OF
THE ARMM WHO SHALL SERVE UNTIL
THEIR SUCCESSORS ARE ELECTED IN
THE
MAY
2013
SYNCHRONIZED
ELECTIONS.[4]
Finally, the petitioners in G.R. No. 197280 argue that:

a)
the
Constitutional
mandate
of
synchronization does not apply to the
ARMM elections;
The Courts Ruling

We deny the motions for lack of merit.
b)
RA No. 10153 negates the basic

principle of republican democracy which,
by constitutional mandate, guides the
governance of the Republic;
c)
RA No. 10153 amends the Organic Act

(RA No. 9054) and, thus, has to comply
with the 2/3 vote from the House of
Representatives and the Senate, voting
separately, and be ratified in a plebiscite;
d)
if the choice is between elective officials

continuing to hold their offices even after
their terms are over and non-elective
individuals getting into the vacant elective
positions by appointment as OICs, the
holdover option is the better choice;
e)
the President only has the power of

supervision over autonomous regions,
which does not include the power to
appoint OICs to take the place of ARMM
elective officials; and
f)
it would be better to hold the ARMM

elections separately from the national and
local elections as this will make it easier for
the authorities to implement election laws.
In essence, the Court is asked to resolve the

following questions:
(a)
Does the Constitution mandate the

synchronization
of
ARMM
regional
elections with national and local elections?
Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the
Constitution mandates the synchronization of national and
local elections. While the Constitution does not expressly
instruct Congress to synchronize the national and local
elections, the intention can be inferred from the following
provisions of the Transitory Provisions (Article XVIII) of the
Constitution, which state:
Section 1. The first elections of
Members of the Congress under this
Constitution shall be held on the second
The first local elections shall be
held on a date to be determined by the
President, which may be simultaneous
with the election of the Members of the
Congress. It shall include the election of all
Members of the city or municipal councils
in the Metropolitan Manila area.
Section 2. The Senators, Members
of the House of Representatives, and the
local officials first elected under this
Constitution shall serve until noon of June
30, 1992.
Of the Senators elected in the
elections in 1992, the first twelve obtaining
the highest number of votes shall serve for
six years and the remaining twelve for
three years.

xxx x
Section 5. The six-year term of the
incumbent President and Vice-President
elected in the February 7, 1986 election is,
for purposes of synchronization of
elections, hereby extended to noon of
June 30, 1992.
The first regular elections for the
President and Vice-President under this
Constitution shall be held on the second
To fully appreciate the constitutional intent behind
these provisions, we refer to the discussions of
the Constitutional Commission:
MR. MAAMBONG. For purposes of
identification, I will now read a section
which we will temporarily indicate as
Section 14. It reads: THE SENATORS,
MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL
OFFICIALS ELECTED IN THE FIRST
ELECTION SHALL SERVE FOR FIVE
YEARS, TO EXPIRE AT NOON OF JUNE
1992.
This
was
presented
by
Commissioner Davide, so may we ask that
Commissioner Davide be recognized.
THE PRESIDING OFFICER (Mr.
Rodrigo).
Commissioner
Davide
is
recognized.
MR. DAVIDE. Before going to the
proposed amendment, I would only state
that in view of the action taken by the
Commission on Section 2 earlier, I am
formulating a new proposal. It will read as
follows: THE SENATORS, MEMBERS OF
THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS FIRST
ELECTED UNDER THIS CONSTITUTION
SHALL SERVE UNTIL NOON OF JUNE
30, 1992.
I proposed this because of the
proposed section of the Article on
Transitory Provisions giving a term to the
until 1992. Necessarily then, since the
term provided by the Commission for
Members of the Lower House and for local
officials is three years, if there will be an
election in 1987, the next election for said
officers will be in 1990, and it would be
very close to 1992. We could never attain,
subsequently, any synchronization of

election which is once every three years.
So under my proposal we will be
able to begin actual synchronization in
1992, and consequently, we should not
have a local election or an election for
Members of the Lower House in 1990 for
them to be able to complete their term of
three years each. And if we also stagger
the Senate, upon the first election it will
result in an election in 1993 for the Senate
alone, and there will be an election for 12
Senators in 1990. But for the remaining 12
who will be elected in 1987, if their term is
for six years, their election will be in 1993.
So, consequently we will have elections in
1990, in 1992 and in 1993. The later
election will be limited to only 12 Senators
and of course to the local officials and the
Members of the Lower House. But,
definitely, thereafter we can never have an
election once every three years, therefore
defeating the very purpose of the
Commission when we adopted the term of
six years for the President and another six
years for the Senators with the possibility
of staggering with 12 to serve for six years
and 12 for three years insofar as the first
Senators are concerned. And so my
proposal is the only way to effect the
first synchronized election which would
mean, necessarily, a bonus of two years
to the Members of the Lower House and
a bonus of two years to the local
elective officials.
Rodrigo). What does the committee say?
MR. DE CASTRO. Mr. Presiding
Officer.
Rodrigo). Commissioner de Castro is
recognized.
MR. DE CASTRO. Thank you.
During the discussion on the
legislative and the synchronization of
elections, I was the one who proposed that
in order to synchronize the elections every
three years, which the body approved
the first national and local officials to be
elected in 1987 shall continue in office for
five years, the same thing the Honorable
Davide is now proposing. That means they
will all serve until 1992, assuming that the
term of the President will be for six years
and continue beginning in 1986. So from

1992, we will again have national, local
and presidential elections. This time, in
1992, the President shall have a term
until 1998 and the first 12 Senators will
serve until 1998, while the next 12 shall
serve until 1995, and then the local
officials elected in 1992 will serve until
1995. From then on, we shall have an
election every three years.
So, I will say that the proposition of
Commissioner Davide is in order, if we
have to synchronize our elections every
three years which was already approved
by the body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be
synchronized, therefore, is the election of
the incumbent President and VicePresident in 1992.
MR. DAVIDE. Yes.
MR.
GUINGONA. Not
the
reverse. Will
the
committee
not
synchronize the election of the Senators
and local officials with the election of the
President?
MR. DAVIDE. It works both ways,
Mr. Presiding Officer. The attempt here is
on the assumption that the provision of the
Transitory Provisions on the term of the
would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words,
there will be a single election in 1992
for all, from the President up to the
municipal officials.[5] (emphases and
underscoring ours)
The framers of the Constitution could not have

expressed their objective more clearly there was to be a
single election in 1992 for all elective officials from the
President down to the municipal officials. Significantly, the
framers were even willing to temporarily lengthen or shorten
the terms of elective officials in order to meet this objective,
highlighting the importance of this constitutional mandate.
We came to the same conclusion in Osmea v.
Commission on Elections,[6] where we unequivocally stated
that the Constitution has mandated synchronized national
and local elections."[7] Despite the length and verbosity of
their motions, the petitioners have failed to convince us to

deviate from this established ruling.
Neither do we find any merit in the petitioners
contention that the ARMM elections are not covered by the
constitutional mandate of synchronization because the
ARMM elections were not specifically mentioned in the
above-quoted Transitory Provisions of the Constitution.
That the ARMM elections were not expressly
mentioned in the Transitory Provisions of the Constitution on
synchronization cannot be interpreted to mean that the
ARMM elections are not covered by the constitutional
mandate of synchronization. We have to consider that the
ARMM, as we now know it, had not yet been officially
organized at the time the Constitution was enacted and
ratified by the people. Keeping in mind that a constitution is
not intended to provide merely for the exigencies of a few
years but is to endure through generations for as long as it
remains unaltered by the people as ultimate sovereign, a
constitution should be construed in the light of what actually
is a continuing instrument to govern not only the present
but also the unfolding events of the indefinite future.
Although the principles embodied in a constitution remain
fixed and unchanged from the time of its adoption, a
constitution must be construed as a dynamic process
intended to stand for a great length of time, to be progressive
and not static.[8]
To reiterate, Article X of the Constitution, entitled
Local Government, clearly shows the intention of the
Constitution to classify autonomous regions, such as the
ARMM, as local governments. We refer to Section 1 of this
Article, which provides:
Section 1. The territorial and
political subdivisions of the Republic of
the Philippines are the provinces, cities,
municipalities, and barangays. There shall
be autonomous regions in Muslim
Mindanao
and
the Cordilleras as
hereinafter provided.
The inclusion of autonomous regions in the

enumeration of political subdivisions of the State under the
heading Local Government indicates quite clearly the
constitutional intent to consider autonomous regions as one
of the forms of local governments.
That the Constitution mentions only the national
government and the local governments, and does not
make a distinction between the local government and the
regional government, is particularly revealing, betraying as
it does the intention of the framers of the Constitution to
consider the autonomous regions not as separate forms of
government, but as political units which, while having more
powers and attributes than other local government units, still
remain under the category of local governments. Since
autonomous regions are classified as local governments, it

follows that elections held in autonomous regions are also
considered as local elections.
The petitioners further argue that even assuming
that the Constitution mandates the synchronization of
elections, the ARMM elections are not covered by this
mandate since they are regional elections and not local
elections.
In construing provisions of the Constitution, the first
rule is verba legis, that is, wherever possible, the words
used in the Constitution must be given their ordinary
meaning
except
where
technical
terms
are
employed.[9] Applying this principle to determine the scope
of local elections, we refer to the meaning of the word
local, as understood in its ordinary sense. As defined
in Websters Third New International Dictionary Unabridged,
local refers to something that primarily serves the needs of
a particular limited district, often a community or minor
political subdivision. Obviously, the ARMM elections, which
are held within the confines of the autonomous region of
Muslim Mindanao, fall within this definition.
To be sure, the fact that the ARMM possesses more
powers than other provinces, cities, or municipalities is not
enough reason to treat the ARMM regional elections
differently from the other local elections. Ubi lex non
distinguit nec nos distinguire debemus. When the law does
not distinguish, we must not distinguish.[10]
RA No. 10153 does not amend RA No. 9054
The petitioners are adamant that the provisions of RA
No. 10153, in postponing the ARMM elections, amend RA
No. 9054.
We cannot agree with their position.
A thorough reading of RA No. 9054 reveals that it
fixes the schedule for only the first ARMM elections;[11] it
does not provide the date for the succeeding regular ARMM
elections. In providing for the date of the regular ARMM
elections, RA No. 9333 and RA No. 10153 clearly do not
amend RA No. 9054 since these laws do not change or
revise any provision in RA No. 9054. In fixing the date of the
ARMM elections subsequent to the first election, RA No.
9333 and RA No. 10153 merely filled the gap left in RA No.
9054.
We reiterate our previous observations:
This view that Congress
thought it best to leave the determination
of the date of succeeding ARMM elections
to legislative discretion finds support in
ARMMs recent history.
To recall, RA No. 10153 is not the
first law passed that rescheduled the
ARMM elections. The First Organic Act
RA No. 6734 not only did not fix the date
of the subsequent elections; it did not even

fix the specific date of the first ARMM
elections, leaving the date to be fixed in
another
legislative
enactment.
Consequently, RA No. 7647, RA No.
8176, RA No. 8746, RA No. 8753, and RA
No. 9012 were all enacted by Congress to
fix the dates of the ARMM elections. Since
these laws did not change or modify any
part or provision of RA No. 6734, they
were not amendments to this latter
law. Consequently, there was no need to
submit them to any plebiscite for
ratification.
The Second Organic Act RA
No. 9054 which lapsed into law on
March 31, 2001, provided that the first
elections would be held on the second
Monday of September 2001. Thereafter,
Congress passed RA No. 9140 to reset the
date of the ARMM elections. Significantly,
while RA No. 9140 also scheduled the
plebiscite for the ratification of the Second
Organic Act (RA No. 9054), the new date
of the ARMM regional elections fixed in
RA No. 9140 was not among the
provisions ratified in the plebiscite held
to approve RA No. 9054. Thereafter,
Congress passed RA No. 9333, which
further reset the date of the ARMM
regional elections. Again, this law was not
ratified through a plebiscite.
From these legislative actions, we
see the clear intention of Congress to treat
the laws which fix the date of the
subsequent ARMM elections as separate
and distinct from the Organic Acts.
Congress only acted consistently with this
intent when it passed RA No. 10153
without requiring compliance with the
amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA
No. 9054.[12] (emphases supplied)
The petitioner in G.R. No. 196305 contends,

however, that there is no lacuna in RA No. 9054 as regards
the date of the subsequent ARMM elections. In his
estimation, it can be implied from the provisions of RA No.
9054 that the succeeding elections are to be held three
years after the date of the first ARMM regional elections.
We find this an erroneous assertion. Well-settled is
the rule that the court may not, in the guise of interpretation,
enlarge the scope of a statute and include therein situations
not provided nor intended by the lawmakers. An omission at
the time of enactment, whether careless or calculated,
cannot be judicially supplied however later wisdom may
recommend the inclusion.[13] Courts are not authorized to

insert into the law what they think should be in it or to supply
what they think the legislature would have supplied if its
attention had been called to the omission.[14] Providing for
lapses within the law falls within the exclusive domain of the
legislature, and courts, no matter how well-meaning, have no
authority to intrude into this clearly delineated space.
Since RA No. 10153 does not amend, but merely
fills in the gap in RA No. 9054, there is no need for RA No.
10153 to comply with the amendment requirements set forth
in Article XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an
irrepealable law
We also highlight an important point raised by

Justice Antonio T. Carpio in his dissenting opinion, where he
stated: Section 1, Article XVII of RA 9054 erects a high vote
threshold for each House of Congress to surmount,
effectively and unconstitutionally, taking RA 9054 beyond the
reach of Congress amendatory powers. One Congress
cannot limit or reduce the plenary legislative power of
succeeding Congresses by requiring a higher vote threshold
than what the Constitution requires to enact, amend or
repeal laws. No law can be passed fixing such a higher
vote threshold because Congress has no power, by
ordinary legislation, to amend the Constitution.[19]
Plebiscite requirement in RA No. 9054 overly broad
Even assuming that RA No. 10153 amends RA No.

9054, however, we have already established that the
supermajority vote requirement set forth in Section 1, Article
XVII of RA No. 9054[15] is unconstitutional for violating the
principle that Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the
power to amend and repeal these laws. Where the
legislature, by its own act, attempts to limit its power to
amend or repeal laws, the Court has the duty to strike down
such act for interfering with the plenary powers of Congress.
As we explained in Duarte v. Dade:[16]
A state legislature has a plenary lawmaking power over all subjects, whether
pertaining to persons or things, within its
territorial jurisdiction, either to introduce
new laws or repeal the old, unless
prohibited expressly or by implication by
the federal constitution or limited or
restrained by its own. It cannot bind itself
or its successors by enacting irrepealable
laws except when so restrained. Every
legislative body may modify or abolish the
acts passed by itself or its predecessors.
This power of repeal may be exercised at
the same session at which the original act
was passed; and even while a bill is in its
progress and before it becomes a
law. This legislature cannot bind a
future legislature to a particular mode
of repeal. It cannot declare in advance
the intent of subsequent legislatures or
the effect of subsequent legislation
upon existing statutes. [emphasis ours]
Under our Constitution, each House of Congress

has the power to approve bills by a mere majority vote,
provided there is quorum.[17] In requiring all laws which
amend RA No. 9054 to comply with a higher voting
requirement than the Constitution provides (2/3 vote),
Congress, which enacted RA No. 9054, clearly violated the
very principle which we sought to establish in Duarte. To
reiterate, the act of one legislature is not binding upon, and
cannot tie the hands of, future legislatures.[18]
Similarly, we struck down the petitioners contention

that the plebiscite requirement[20] applies to all amendments
of RA No. 9054 for being an unreasonable enlargement of
the plebiscite requirement set forth in the Constitution.
Section 18, Article X of the Constitution provides
that [t]he creation of the autonomous region shall be
effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose[.] We
interpreted this to mean that only amendments to, or
revisions of, the Organic Act constitutionally-essential to the
creation of autonomous regions i.e., those aspects
specifically mentioned in the Constitution which Congress
must provide for in the Organic Act[21] require ratification
through a plebiscite. We stand by this interpretation.
The petitioners argue that to require all
amendments to RA No. 9054 to comply with the plebiscite
requirement is to recognize that sovereignty resides primarily
in the people.
While we agree with the petitioners underlying
premise that sovereignty ultimately resides with the people,
we disagree that this legal reality necessitates compliance
with the plebiscite requirement for all amendments to RA No.
9054. For if we were to go by the petitioners interpretation of
Section 18, Article X of the Constitution that all amendments
to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to
impractical and illogical results hampering the ARMMs
progress by impeding Congress from enacting laws that
timely address problems as they arise in the region, as well
as weighing down the ARMM government with the costs that
unavoidably follow the holding of a plebiscite.
Interestingly, the petitioner in G.R. No. 197282
posits that RA No. 10153, in giving the President the power
to appoint OICs to take the place of the elective officials of
the ARMM, creates a fundamental change in the basic
structure of the government, and thus requires compliance
with the plebiscite requirement embodied in RA No. 9054.
Again, we disagree.

The pertinent provision in this regard is Section 3 of
RA No. 10153, which reads:
Section 3. Appointment of Officersin-Charge. The President shall appoint
officers-in-charge for the Office of the
Regional
Governor,
Regional
Vice
Governor and Members of the Regional
Legislative Assembly who shall perform
the functions pertaining to the said offices
until the officials duly elected in the May
2013 elections shall have qualified and
assumed office.
We cannot see how the above-quoted provision has
changed the basic structure of the ARMM regional
government. On the contrary, this provision clearly preserves
the basic structure of the ARMM regional government when
it recognizes the offices of the ARMM regional government
and directs the OICs who shall temporarily assume these
offices to perform the functions pertaining to the said
offices.
Unconstitutionality of the holdover provision
The petitioners are one in defending the
constitutionality of Section 7(1), Article VII of RA No. 9054,
which allows the regional officials to remain in their positions
in a holdover capacity. The petitioners essentially argue that
the ARMM regional officials should be allowed to remain in
their respective positions until the May 2013 elections since
there is no specific provision in the Constitution which
prohibits regional elective officials from performing their
duties in a holdover capacity.
The pertinent provision of the Constitution is Section 8,
Article X which provides:
Section 8. The term of office of
elective local officials, except barangay
officials, which shall be determined by
law, shall be three years and no such
official shall serve for more than three
consecutive terms. [emphases ours]
On the other hand, Section 7(1), Article VII of RA

No. 9054 provides:
Section 7. Terms of Office of
Elective Regional Officials. (1) Terms of
Office. The terms of office of the Regional
Governor, Regional Vice Governor and
members of the Regional Assembly shall
be for a period of three (3) years, which
shall begin at noon on the 30th day of
September next following the day of the
election and shall end at noon of the same
date three (3) years thereafter. The
incumbent elective officials of the
autonomous region shall continue in effect
until their successors are elected and

qualified.
The clear wording of Section 8, Article X of the

Constitution expresses the intent of the framers of the
Constitution to categorically set a limitation on the period
within which all elective local officials can occupy their
offices. We have already established that elective ARMM
officials are also local officials; they are, thus, bound by the
three-year term limit prescribed by the Constitution. It,
therefore, becomes irrelevant that the Constitution does not
expressly prohibit elective officials from acting in a holdover
capacity.Short of amending the Constitution, Congress
has no authority to extend the three-year term limit by
inserting a holdover provision in RA No. 9054. Thus, the
term of three years for local officials should stay at three (3)
years, as fixed by the Constitution, and cannot be extended
by holdover by Congress.
Admittedly, we have, in the past, recognized the

validity of holdover provisions in various laws. One
significant difference between the present case and these
past cases[22] is that while these past cases all refer to
elective barangay or sangguniang
kabataan officials whose terms of office are not explicitly
provided for in the Constitution, the present case refers to
local elective officials - the ARMM Governor, the ARMM Vice
Governor, and the members of the Regional Legislative
Assembly - whose terms fall within the three-year term limit
set by Section 8, Article X of the Constitution.
Even assuming that a holdover is constitutionally
permissible, and there had been statutory basis for it
(namely Section 7, Article VII of RA No. 9054), the rule of
holdover can only apply as an available option where no
express or implied legislative intent to the contrary exists; it
cannot apply where such contrary intent is evident.[23]
Congress, in passing RA No. 10153 and removing
the holdover option, has made it clear that it wants to
suppress the holdover rule expressed in RA No. 9054.
Congress, in the exercise of its plenary legislative powers,
has clearly acted within its discretion when it deleted the
holdover option, and this Court has no authority to question
the wisdom of this decision, absent any evidence of
unconstitutionality or grave abuse of discretion. It is for the
legislature and the executive, and not this Court, to decide
how to fill the vacancies in the ARMM regional government
which arise from the legislature complying with the
constitutional mandate of synchronization.
COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the
Commission on Elections (COMELEC) is sufficiently
empowered to set the date of special elections in the ARMM.
To recall, the Constitution has merely empowered the
COMELEC to enforce and administer all laws and
regulations relative to the conduct of an election. [24] Although

the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the
power to postpone elections to another date, this power is
confined to the specific terms and circumstances provided
for in the law. Specifically, this power falls within the narrow
confines of the following provisions:
instances where elections have already been scheduled to

take place but do not occur or had to be suspended because
of unexpected and unforeseen circumstances, such as
violence,
fraud,
terrorism,
and other
analogous
circumstances.
Section
5. Postponement
of
election. - When for any serious cause
such
as violence, terrorism, loss
or
destruction of election paraphernalia or
records, force
majeure,
and other
analogous causes of such a nature that
the holding of a free, orderly and honest
election should become impossible in any
political
subdivision,
the
Commission, motu proprio or upon a
verified petition by any interested party,
and after due notice and hearing, whereby
all interested parties are afforded equal
opportunity to be heard, shall postpone
the election therein to a date which
should be reasonably close to the date
of the election not held, suspended or
which resulted in a failure to elect but
not later than thirty days after the
cessation of the cause for such
postponement or suspension of the
election or failure to elect.
In contrast, the ARMM elections were postponed

by law, in furtherance of the constitutional mandate of
synchronization of national and local elections. Obviously,
this does not fall under any of the circumstances
contemplated by Section 5 or Section 6 of BP 881.
Section 6. Failure of election. - If,

on
account
of force
majeure, violence, terrorism, fraud,
or other analogous causes the election
in any polling place has not been held
on
the
date
fixed, or had
been
suspended before the hour fixed by law
for the closing of the voting, or after the
voting and during the preparation and the
transmission of the election returns or in
the custody or canvass thereof, such
election results in a failure to elect, and
in any of such cases the failure or
suspension of election would affect the
result of the election, the Commission
shall, on the basis of a verified petition by
any interested party and after due notice
and hearing, call for the holding or
continuation of the election not held,
suspended or which resulted in a failure to
elect on a date reasonably close to the
date of the election not held, suspended or
which resulted in a failure to elect but not
later than thirty days after the cessation of
the cause of such postponement or
suspension of the election or failure to
elect. [emphases and underscoring ours]
As we have previously observed in our assailed

decision, both Section 5 and Section 6 of BP 881 address
More importantly, RA No. 10153 has already fixed

the date for the next ARMM elections and the COMELEC
has no authority to set a different election date.
Even assuming that the COMELEC has the authority
to hold special elections, and this Court can compel the
COMELEC to do so, there is still the problem of having to
shorten the terms of the newly elected officials in order to
synchronize the ARMM elections with the May 2013 national
and local elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting as it does
to an amendment of Section 8, Article X of the Constitution,
which limits the term of local officials to three years.
Presidents authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the
Presidents power to appoint pertains only to appointive
positions and cannot extend to positions held by elective
officials.
The power to appoint has traditionally been
recognized as executive in nature.[25] Section 16, Article VII of
the Constitution describes in broad strokes the extent of this
power, thus:
Section 16. The President shall
nominate and, with the consent of the
Commission on Appointments, appoint the
heads of the executive departments,
ambassadors, other public ministers and
consuls, or officers of the armed forces
from the rank of colonel or naval captain,
and other officers whose appointments are
vested in him in this Constitution. He shall
also appoint all other officers of the
Government whose appointments are
not otherwise provided for by law, and
those whom he may be authorized by
law to appoint. The Congress may, by
law, vest the appointment of other officers
lower in rank in the President alone, in the
courts, or in the heads of departments,
agencies, commissions, or boards.
[emphasis ours]

The 1935 Constitution contained a provision similar
to the one quoted above. Section 10(3), Article VII of the
1935 Constitution provides:
(3) The President shall nominate
and with the consent of the Commission
on Appointments, shall appoint the heads
of the executive departments and bureaus,
officers of the Army from the rank of
colonel, of the Navy and Air Forces from
the rank of captain or commander, and all
other officers of the Government whose
appointments are not herein otherwise
provided for, and those whom he may be
authorized by law to appoint; but the
Congress may by law vest the
appointment of inferior officers, in the
President alone, in the courts, or in the
heads of departments. [emphasis ours]
The main distinction between the provision in the 1987

Constitution and its counterpart in the 1935 Constitution is
the sentence construction; while in the 1935 Constitution, the
various appointments the President can make are
enumerated in a single sentence, the 1987 Constitution
enumerates the various appointments the President is
empowered to make and divides the enumeration in two
sentences. The change in style is significant; in providing for
this change, the framers of the 1987 Constitution clearly
sought to make a distinction between the first group of
presidential appointments and the second group of
presidential appointments, as made evident in the following
exchange:
MR. FOZ. Madame President x x x
I propose to put a period (.) after captain
and x x x delete and all and substitute it
with HE SHALL ALSO APPOINT ANY.
MR.
REGALADO.
Madam
President, the Committee accepts the
proposed amendment because it makes it
clear that those other officers mentioned
therein do not have to be confirmed by the
Commission on Appointments.[26]
The first group of presidential appointments, specified

as the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the Armed
Forces, and other officers whose appointments are vested in
the President by the Constitution, pertains to the appointive
officials who have to be confirmed by the Commission on
Appointments.
The second group of officials the President can
appoint are all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. [27] The
second sentence acts as the catch-all provision for the
Presidents appointment power, in recognition of the fact that

the power to appoint is essentially executive in nature. [28] The
wide latitude given to the President to appoint is further
demonstrated by the recognition of the Presidents power to
appoint officials whose appointments are not even
provided for by law. In other words, where there are offices
which have to be filled, but the law does not provide the
process for filling them, the Constitution recognizes the
power of the President to fill the office by appointment.
Any limitation on or qualification to the exercise of
the Presidents appointment power should be strictly
construed and must be clearly stated in order to be
recognized.[29]Given that the President derives his power to
appoint OICs in the ARMM regional government from law, it
falls under the classification of presidential appointments
covered by the second sentence of Section 16, Article VII of
the Constitution; the Presidents appointment power thus
rests on clear constitutional basis.
The petitioners also jointly assert that RA No.
10153, in granting the President the power to appoint OICs
in elective positions, violates Section 16, Article X of the
Constitution,[30] which merely grants the President the power
of supervision over autonomous regions.
This is an overly restrictive interpretation of the
Presidents appointment power. There is no incompatibility
between the Presidents power of supervision over local
governments and autonomous regions, and the power
granted to the President, within the specific confines of RA
No. 10153, to appoint OICs.
The power of supervision is defined as the power of a
superior officer to see to it that lower officers perform their
functions in accordance with law.[31] This is distinguished
from the power of control or the power of an officer to alter
or modify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment
of the former for the latter.[32]
The petitioners apprehension regarding the
Presidents alleged power of control over the OICs is rooted
in their belief that the Presidents appointment power
includes the power to remove these officials at will. In this
way, the petitioners foresee that the appointed OICs will be
beholden to the President, and act as representatives of the
President and not of the people.
Section 3 of RA No. 10153 expressly contradicts the
petitioners supposition. The provision states:
Section 3. Appointment of Officersin-Charge. The President shall appoint
officers-in-charge for the Office of the
Regional
Governor,
Regional
Vice
Governor and Members of the Regional
Legislative Assembly who shall perform
the functions pertaining to the said offices
until the officials duly elected in the May

2013 elections shall have qualified and
assumed office.
The wording of the law is clear. Once the President

has appointed the OICs for the offices of the Governor, Vice
Governor and members of the Regional Legislative
Assembly, these same officials will remain in office until they
are replaced by the duly elected officials in the May 2013
elections. Nothing in this provision even hints that the
President has the power to recall the appointments he
already made. Clearly, the petitioners fears in this regard are
more apparent than real.
RA No. 10153 as an interim measure
We reiterate once more the importance of
considering RA No. 10153 not in a vacuum, but within the
context it was enacted in. In the first place, Congress
enacted RA No. 10153 primarily to heed the constitutional
mandate to synchronize the ARMM regional elections with
the national and local elections. To do this, Congress had to
postpone the scheduled ARMM elections for another date,
leaving it with the problem of how to provide the ARMM
with governance in the intervening period, between the
expiration of the term of those elected in August 2008 and
the assumption to office twenty-one (21) months away of
those who will win in the synchronized elections on May 13,
2013.
In our assailed Decision, we already identified the
three possible solutions open to Congress to address the
problem created by synchronization (a) allow the
incumbent officials to remain in office after the expiration of
their terms in a holdover capacity; (b) call for special
elections to be held, and shorten the terms of those to be
elected so the next ARMM regional elections can be held on
May 13, 2013; or (c) recognize that the President, in the
exercise of his appointment powers and in line with his
power of supervision over the ARMM, can appoint interim
OICs to hold the vacated positions in the ARMM regional
government upon the expiration of their terms. We have
already established the unconstitutionality of the first two
options, leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim
measure, enacted to respond to the adjustment that
synchronization requires. Given the context, we have to
judge RA No. 10153 by the standard of reasonableness in
responding to the challenges brought about by synchronizing
the ARMM elections with the national and local elections. In
other words, given the plain unconstitutionality of
providing for a holdover and the unavailability of
constitutional possibilities for lengthening or shortening
the term of the elected ARMM officials, is the choice of
the Presidents power to appoint for a fixed and
specific period as an interim measure, and as allowed
under Section 16, Article VII of the Constitution an
unconstitutional or unreasonable choice for Congress
to make?[33]
We admit that synchronization will temporarily

disrupt the election process in a local community, the ARMM,
as well as the communitys choice of leaders. However, we
have to keep in mind that the adoption of this measure is a
matter of necessity in order to comply with a mandate that
the Constitution itself has set out for us. Moreover, the
implementation of the provisions of RA No. 10153 as an
interim measure is comparable to the interim measures
traditionally practiced when, for instance, the President
appoints officials holding elective offices upon the creation of
new local government units.
The grant to the President of the power to appoint
OICs in place of the elective members of the Regional
Legislative Assembly is neither novel nor innovative. The
power granted to the President, via RA No. 10153, to appoint
members of the Regional Legislative Assembly is
comparable to the power granted by BP 881 (the Omnibus
Election Code) to the President to fill any vacancy for any
cause in the Regional Legislative Assembly (then called
the Sangguniang Pampook).[34]
Executive is not bound by the principle of judicial
courtesy
The petitioners in G.R. No. 197280, in their
Manifestation and Motion dated December 21, 2011,
question the propriety of the appointment by the President of
Mujiv Hataman as acting Governor and Bainon Karon as
acting Vice Governor of the ARMM. They argue that since
our previous decision was based on a close vote of 8-7, and
given the numerous motions for reconsideration filed by the
parties, the President, in recognition of the principle of
judicial courtesy, should have refrained from implementing
our decision until we have ruled with finality on this case.
We find the petitioners reasoning specious.
Firstly, the principle of judicial courtesy is based on the
hierarchy of courts and applies only to lower courts in
instances where, even if there is no writ of preliminary
injunction or TRO issued by a higher court, it would be
proper for a lower court to suspend its proceedings for
practical and ethical considerations.[35] In other words, the
principle of judicial courtesy applies where there is a strong
probability that the issues before the higher court would be
rendered moot and moribund as a result of the continuation
of the proceedings in the lower court or court of origin.
[36]
Consequently, this principle cannot be applied to the
President, who represents a co-equal branch of government.
To suggest otherwise would be to disregard the principle of
separation of powers, on which our whole system of
government is founded upon.
Secondly, the fact that our previous decision was
based on a slim vote of 8-7 does not, and cannot, have the
effect of making our ruling any less effective or binding.
Regardless of how close the voting is, so long as there is
concurrence of the majority of the members of the en
banc who actually took part in the deliberations of the case,
[37]
a decision garnering only 8 votes out of 15 members is

still a decision of the Supreme Court en banc and must be
respected as such. The petitioners are, therefore, not in any
position to speculate that, based on the voting, the
probability exists that their motion for reconsideration may be
granted.[38]
Similarly, the petitioner in G.R. No. 197282, in his Very
Urgent Motion to Issue Clarificatory Resolution, argues that
since motions for reconsideration were filed by the aggrieved
parties challenging our October 18, 2011 decision in the
present case, the TRO we initially issued on September 13,
2011 should remain subsisting and effective. He further
argues that any attempt by the Executive to implement our
October 18, 2011 decision pending resolution of the motions
for reconsideration borders on disrespect if not outright
insolence[39] to this Court.
In support of this theory, the petitioner cites Samad
v. COMELEC,[40] where the Court held that while it had
already issued a decision lifting the TRO, the lifting of the
TRO is not yet final and executory, and can also be the
subject of a motion for reconsideration. The petitioner also
cites the minute resolution issued by the Court in Tolentino v.
Secretary of Finance,[41] where the Court reproached the
Commissioner of the Bureau of Internal Revenue for
manifesting its intention to implement the decision of the
Court, noting that the Court had not yet lifted the TRO
previously issued.[42]
We agree with the petitioner that the lifting of a TRO
can be included as a subject of a motion for reconsideration
filed to assail our decision. It does not follow, however, that
the TRO remains effective until after we have issued a final
and executory decision, especially considering the clear
wording of the dispositive portion of our October 18, 2011
decision, which states:
WHEREFORE,
premises
considered, we DISMISS the consolidated
petitions assailing the validity of RA No.
10153 for lack of merit, and UPHOLD the
constitutionality of this law. We likewise
LIFT the temporary restraining order we
issued in our Resolution of September
13, 2011. No costs.[43] (emphases ours)
As a final point, we wish to address the bleak

picture that the petitioner in G.R. No. 197282 presents in his
motion, that our Decision has virtually given the President
the power and authority to appoint 672,416 OICs in the event
that
the
elections
of barangay and Sangguniang
Kabataan officials are postponed or cancelled.
We find this speculation nothing short of fearmongering.
This argument fails to take into consideration the
unique factual and legal circumstances which led to the
enactment of RA No. 10153. RA No. 10153 was passed in
order to synchronize the ARMM elections with the national
and local elections. In the course of synchronizing the ARMM
elections with the national and local elections, Congress had
to grant the President the power to appoint OICs in the
ARMM, in light of the fact that: (a) holdover by the incumbent
ARMM elective officials is legally impermissible; and (b)
Congress cannot call for special elections and shorten the
terms of elective local officials for less than three years.
Unlike local officials, as the Constitution does not
prescribe a term limit for barangay and Sangguniang
Kabataan officials, there is no legal proscription which
prevents these specific government officials from continuing
in a holdover capacity should some exigency require the
postponement
of barangay or Sangguniang
Kabataan elections. Clearly, these fears have neither legal
nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners
motions for reconsideration.
WHEREFORE,
premises
considered,
we DENY with FINALITY the motions for reconsideration for
lack of merit and UPHOLD the constitutionality of RA No.
10153.
SO ORDERED.
CHAVEZ v. JBC
In this regard, we note an important distinction
between Tolentino and the present case. While it may be
true that Tolentino and the present case are similar in that, in
both cases, the petitions assailing the challenged laws were
dismissed by the Court, an examination of the dispositive
portion of the decision in Tolentino reveals that the Court did
not categorically lift the TRO. In sharp contrast, in the
present case, we expressly lifted the TRO issued on
September 13, 2011. There is, therefore, no legal
impediment to prevent the President from exercising his
authority to appoint an acting ARMM Governor and Vice
Governor as specifically provided for in RA No. 10153.
Conclusion
696 S 496 (2013)

SUPREME COURT
Manila
EN BANC
G.R. No. 202242
April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH

G. ESCUDERO and REP. NIEL C. TUPAS,
JR.,Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by the
Office of the Solicitor General (OSG) on behalf of the
respondents, Senator Francis Joseph G. Escudero and
Congressman Niel C. Tupas, Jr. (respondents), duly
opposed2 by the petitioner, former Solicitor General
Francisco I. Chavez (petitioner).
By way of recapitulation, the present action stemmed from
the unexpected departure of former Chief Justice Renato C.
Corona on May 29, 2012, and the nomination of petitioner,
as his potential successor. In his initiatory pleading,
petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution
allows more than one (1) member of Congress to sit in the
JBC; and 2] if the practice of having two (2) representatives
from each House of Congress with one (1) vote each is
sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed
subject decision, disposing the same in the following
manner:
WHEREFORE, the petition is GRANTED. The current
numerical composition of the Judicial and Bar Council is
declared UNCONSTITUTIONAL. The Judicial and Bar
Council is hereby enjoined to reconstitute itself so that only
one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of
the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents motion for
reconsideration and with due regard to Senate Resolution
Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject
motion for oral arguments on August 2, 2012.7 On August 3,
2012, the Court discussed the merits of the arguments and
agreed, in the meantime, to suspend the effects of the
second paragraph of the dispositive portion of the July 17,
2012 Decision which decreed that it was immediately
executory. The decretal portion of the August 3, 2012
Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit
their respective MEMORANDA within ten (10) days from
notice. Until further orders, the Court hereby SUSPENDS the
effect of the second paragraph of the dispositive portion of
the Courts July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9
Pursuant to the same resolution, petitioner and respondents

filed their respective memoranda.10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of
the Philippine Republic, the exercise of appointing members
of the Judiciary has always been the exclusive prerogative of
the executive and legislative branches of the government.
Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power
to appoint the members of the Judiciary in the President,
subject to confirmation by the Commission on Appointments.
It was during these times that the country became witness to
the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves
with the members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of the
executive and legislative powers in one body, the
appointment of judges and justices ceased to be subject of
scrutiny by another body. The power became exclusive and
absolute to the Executive, subject only to the condition that
the appointees must have all the qualifications and none of
the disqualifications.
Prompted by the clamor to rid the process of appointments
to the Judiciary of the evils of political pressure and partisan
activities,15 the members of the Constitutional Commission
saw it wise to create a separate, competent and independent
body to recommend nominees to the President.
Thus, it conceived of a body, representative of all the
stakeholders in the judicial appointment process, and called
it the Judicial and Bar Council (JBC). The Framers carefully
worded Section 8, Article VIII of the 1987 Constitution in this
wise:
Section 8. (1) A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of
the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a professor
of law, a retired Member of the Supreme Court, and a
representative of the private sector.
From the moment of the creation of the JBC, Congress
designated one (1) representative to sit in the JBC to act as
one of the ex-officio members.16 Pursuant to the
constitutional provision that Congress is entitled to one (1)
representative, each House sent a representative to the
JBC, not together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was
substantially altered.1wphi1 An eighth member was added
to the JBC as the two (2) representatives from Congress
began sitting simultaneously in the JBC, with each having
one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the
representatives from the Senate and the House of
Representatives one full vote each.18 It has been the
situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court
reconsider its decision and dismiss the petition on the
following grounds: 1] that allowing only one representative
from Congress in the JBC would lead to absurdity
considering its bicameral nature; 2] that the failure of the
Framers to make the proper adjustment when there was a
shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would
not subvert the intention of the Framers to insulate the JBC
from political partisanship; and 4] that the rationale of the
Court in declaring a seven-member composition would
provide a solution should there be a stalemate is not exactly
correct.
While the Court may find some sense in the reasoning in
amplification of the third and fourth grounds listed by
respondents, still, it finds itself unable to reverse the assailed
decision on the principal issues covered by the first and
second grounds for lack of merit. Significantly, the conclusion
arrived at, with respect to the first and second grounds,
carries greater bearing in the final resolution of this case.
As these two issues are interrelated, the Court shall discuss
them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino
people by which the fundamental powers of government are
established, limited and defined and by which those powers
are distributed among the several departments for their safe
and useful exercise for the benefit of the body politic. 19 The
Framers reposed their wisdom and vision on one suprema
lex to be the ultimate expression of the principles and the
framework upon which government and society were to
operate. Thus, in the interpretation of the constitutional
provisions, the Court firmly relies on the basic postulate that
the Framers mean what they say. The language used in the
Constitution must be taken to have been deliberately chosen
for a definite purpose. Every word employed in the
Constitution must be interpreted to exude its deliberate intent
which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according
to its text, compels acceptance and bars modification even
by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of
plain oversight in order to justify constitutional construction.
As stated in the July 17, 2012 Decision, in opting to use the
singular letter "a" to describe "representative of Congress,"
the Filipino people through the Framers intended that
Congress be entitled to only one (1) seat in the JBC. Had the
intention been otherwise, the Constitution could have, in no
uncertain terms, so provided, as can be read in its other

provisions.
A reading of the 1987 Constitution would reveal that several
provisions were indeed adjusted as to be in tune with the
shift to bicameralism. One example is Section 4, Article VII,
which provides that a tie in the presidential election shall be
broken "by a majority of all the Members of both Houses of
the Congress, voting separately."20 Another is Section 8
thereof which requires the nominee to replace the VicePresident to be confirmed "by a majority of all the Members
of
both
Houses
of
the
Congress,
voting
separately."21 Similarly, under Section 18, the proclamation of
martial law or the suspension of the privilege of the writ of
habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority
of all its Members."22 In all these provisions, the bicameral
nature of Congress was recognized and, clearly, the
corresponding adjustments were made as to how a matter
would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section
8, Article VIII, by sheer inadvertence, to their decision to shift
to a bicameral form of the legislature, is not persuasive
enough. Respondents cannot just lean on plain oversight to
justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on
congressional representation in the JBC because it was not
in the exercise of its primary function to legislate. JBC was
created to support the executive power to appoint, and
Congress, as one whole body, was merely assigned a
contributory non-legislative function.
The underlying reason for such a limited participation can
easily be discerned. Congress has two (2) Houses. The need
to recognize the existence and the role of each House is
essential considering that the Constitution employs precise
language in laying down the functions which particular
House plays, regardless of whether the two Houses
consummate an official act by voting jointly or separately.
Whether in the exercise of its legislative23 or its nonlegislative functions such as inter alia, the power of
appropriation,24 the declaration of an existence of a state of
war,25 canvassing of electoral returns for the President and
Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering
the interplay between these two Houses. In all these
instances, each House is constitutionally granted with
powers and functions peculiar to its nature and with keen
consideration to 1) its relationship with the other chamber;
and 2) in consonance with the principle of checks and
balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction
between the two Houses in their participation in the JBC. No
mechanism is required between the Senate and the House
of Representatives in the screening and nomination of
judicial officers. Rather, in the creation of the JBC, the
Framers arrived at a unique system by adding to the four (4)
regular members, three (3) representatives from the major

branches of government - the Chief Justice as ex-officio
Chairman (representing the Judicial Department), the
Secretary of Justice (representing the Executive
Department), and a representative of the Congress
(representing the Legislative Department). The total is seven
(7), not eight. In so providing, the Framers simply gave
recognition to the Legislature, not because it was in the
interest of a certain constituency, but in reverence to it as a
major branch of government.
each category of members pertained to a single individual

only. Thus, while we do not lose sight of the bicameral nature
of our legislative department, it is beyond dispute that Art.
VIII, Section 8 (1) of the 1987 Constitution is explicit and
specific that "Congress" shall have only "xxx a
representative." Thus, two (2) representatives from Congress
would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated.
(Emphases and underscoring supplied)
On this score, a Member of Congress, Hon. Simeon A.

Datumanong, from the Second District of Maguindanao,
submitted his well-considered position28 to then Chief Justice
Reynato S. Puno:
In this regard, the scholarly dissection on the matter by

retired Justice Consuelo Ynares-Santiago, a former JBC
consultant, is worth reiterating.31 Thus:
I humbly reiterate my position that there should be only one

representative of Congress in the JBC in accordance with
Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does
not need any further interpretation. Perhaps, it is apt to
mention that the oft-repeated doctrine that "construction and
interpretation come only after it has been demonstrated that
application is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the
Council, with one vote each, is to negate the principle of
equality among the three branches of government which is
enshrined in the Constitution.
In view of the foregoing, I vote for the proposition that the
Council should adopt the rule of single representation of
Congress in the JBC in order to respect and give the right
meaning to the above-quoted provision of the Constitution.
(Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A.
Quisumbing, also a JBC Consultant, submitted to the Chief
Justice and ex-officio JBC Chairman his opinion, 29 which
reads:
8. Two things can be gleaned from the excerpts and citations
above: the creation of the JBC is intended to curtail the
influence of politics in Congress in the appointment of
judges, and the understanding is that seven (7) persons will
compose the JBC. As such, the interpretation of two votes
for Congress runs counter to the intendment of the framers.
Such interpretation actually gives Congress more influence
in the appointment of judges. Also, two votes for Congress
would increase the number of JBC members to eight, which
could lead to voting deadlock by reason of even-numbered
membership, and a clear violation of 7 enumerated members
in the Constitution. (Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice
Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision,
the JBC is composed of seven (7) representatives coming
from different sectors. From the enumeration it is patent that
A perusal of the records of the Constitutional Commission

reveals that the composition of the JBC reflects the
Commissions desire "to have in the Council a representation
for the major elements of the community." xxx The ex-officio
members of the Council consist of representatives from the
three main branches of government while the regular
members are composed of various stakeholders in the
judiciary. The unmistakeable tenor of Article VIII, Section 8(1)
was to treat each ex-officio member as representing one coequal branch of government. xxx Thus, the JBC was
designed to have seven voting members with the three exofficio members having equal say in the choice of judicial
nominees.
xxx
No parallelism can be drawn between the representative of
Congress in the JBC and the exercise by Congress of its
legislative powers under Article VI and constituent powers
under Article XVII of the Constitution. Congress, in relation to
the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the
matter of its representative in the JBC. On the other hand,
the exercise of legislative and constituent powers requires
the Senate and the House of Representatives to coordinate
and act as distinct bodies in furtherance of Congress role
under our constitutional scheme. While the latter justifies
and, in fact, necessitates the separateness of the two
Houses of Congress as they relate inter se, no such
dichotomy need be made when Congress interacts with the
other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three
governmental branches to assign the same weight to
considerations that any of its representatives may have
regarding aspiring nominees to the judiciary. The
representatives of the Senate and the House of
Representatives act as such for one branch and should not
have any more quantitative influence as the other branches
in the exercise of prerogatives evenly bestowed upon the
three. Sound reason and principle of equality among the
three branches support this conclusion. [Emphases and
underscoring supplied]
The argument that a senator cannot represent a member of
the House of Representatives in the JBC and vice-versa is,

thus, misplaced. In the JBC, any member of Congress,
whether from the Senate or the House of Representatives, is
constitutionally empowered to represent the entire Congress.
It may be a constricted constitutional authority, but it is not an
absurdity.
From this score stems the conclusion that the lone
representative of Congress is entitled to one full vote. This
pronouncement effectively disallows the scheme of splitting
the said vote into half (1/2), between two representatives of
Congress. Not only can this unsanctioned practice cause
disorder in the voting process, it is clearly against the
essence of what the Constitution authorized. After all, basic
and reasonable is the rule that what cannot be legally done
directly cannot be done indirectly. To permit or tolerate the
splitting of one vote into two or more is clearly a
constitutional circumvention that cannot be countenanced by
the Court. Succinctly put, when the Constitution envisioned
one member of Congress sitting in the JBC, it is sensible to
presume that this representation carries with him one full
vote.
It is also an error for respondents to argue that the President,
in effect, has more influence over the JBC simply because all
of the regular members of the JBC are his appointees. The
principle of checks and balances is still safeguarded
because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the
Commission on Appointments, which is composed of
members of Congress.
Respondents contention that the current irregular
composition of the JBC should be accepted, simply because
it was only questioned for the first time through the present
action, deserves scant consideration. Well-settled is the rule
that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain
acceptance under the doctrine of estoppel or laches,
because once an act is considered as an infringement of the
Constitution it is void from the very beginning and cannot be
the source of any power or authority.
It would not be amiss to point out, however, that as a general
rule, an unconstitutional act is not a law; it confers no rights;
it imposes no duties; it affords no protection; it creates no
office; it is inoperative as if it has not been passed at all. This
rule, however, is not absolute. Under the doctrine of
operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not
nullified. This is essential in the interest of fair play. To
reiterate the doctrine enunciated in Planters Products, Inc. v.
Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the general
rule, only applies as a matter of equity and fair play. It
nullifies the effects of an unconstitutional law by recognizing
that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past
cannot always be erased by a new judicial declaration. The
doctrine
is
applicable
when
a
declaration
of
unconstitutionality will impose an undue burden on those
who have relied on the invalid law. Thus, it was applied to a
criminal case when a declaration of unconstitutionality would
put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating
it.33
Under the circumstances, the Court finds the exception
applicable in this case and holds that notwithstanding its
finding of unconstitutionality in the current composition of the
JBC, all its prior official actions are nonetheless valid.
Considering that the Court is duty bound to protect the
Constitution which was ratified by the direct action of the
Filipino people, it cannot correct what respondents perceive
as a mistake in its mandate. Neither can the Court, in the
exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express
provisions and justify the same as correcting a perceived
inadvertence. To do so would otherwise sanction the Court
action of making amendment to the Constitution through a
judicial pronouncement.
In other words, the Court cannot supply the legislative
omission. According to the rule of casus omissus "a case
omitted is to be held as intentionally omitted." 34 "The principle
proceeds from a reasonable certainty that a particular
person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its
power of interpretation supply the omission even though the
omission may have resulted from inadvertence or because
the
case
in
question
was
not
foreseen
or
contemplated."36 "The Court cannot supply what it thinks the
legislature would have supplied had its attention been called
to the omission, as that would be judicial legislation."37
Stated differently, the Court has no power to add another
member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the
Court tasked to guard the Constitution against usurpation.
The Court remains steadfast in confining its powers in the
sphere granted by the Constitution itself. Judicial activism
should never be allowed to become judicial exuberance. 38 In
cases like this, no amount of practical logic or convenience
can convince the Court to perform either an excision or an
insertion that will change the manifest intent of the Framers.
To broaden the scope of congressional representation in the
JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its
constitutional mandate, the Court cannot craft and tailor
constitutional provisions in order to accommodate all of
situations no matter how ideal or reasonable the proposed
solution may sound. To the exercise of this intrusion, the
Court declines.
WHEREFORE, the Motion for Reconsideration filed by
respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the
dispositive portion of the July 17, 2012 Decision of the Court,
which reads, "This disposition is immediately executory," is
hereby LIFTED.
SO ORDERED.

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CONSTITUTIONAL LAW 1 (Atty.

Reyes was to be divided equally among his children by his

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 2

assurance of both counsels of the respective parties to this

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 3

case against Dr. Arcadio Galapon was dismissed because

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 4

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 5

Bonifacio Ramo, the counsel of record of Mrs. Macariola,

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 6

corporation having been organized to engage in business.

Complainant also assails the project of partition because

Article 14 The following cannot engage in commerce,

1. Justices of the Supreme Court, judges and officials of the

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 7

(h) Directly or indirectly having financial or pecuniary interest

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 8

And under Sections 5, 6 and 7, Article X of the 1973

Moreover, the prohibition in paragraph 5, Article 1491 of the

It is true that under Section 33 of the Civil Service Act of

In addition, although Section 12, Rule XVIII of the Civil

However, judges cannot be considered as subordinate civil

On the contention of complainant that respondent Judge

Moreover, under Section 16(i) of the Civil Service Act of

It must be emphasized at the outset that respondent, being a

Although the actuation of respondent Judge in engaging in

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 9

reason for disbelieving this assertion of respondent. It has

II. BACKGROUND OF THE PRESENT CONSTITUTION

THE FEBRUARY 1986 REVOLUTION AND THE

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 10

matter of public record and common public knowledge that

Claiming that the said provision "is not clear" as to whom it

For the above-quoted reason, which are fully applicable to

The petition is dismissed outright for lack of jurisdiction and

LETTER OF ASSOCIATE JUSTICE PUNO

Prescinding from petitioner's lack of personality to sue or to

ACCORDINGLY, the petition is hereby dismissed.

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 11

Petitioner Associate Justice Reynato S. Puno, a member of

which their appointments were issued by the President. Any

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 12

It is the holding of the Court that the present Court of

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 13

so desired, amend, modify or repeal any part of B.P. Blg. 129

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 14

7, 1982 and shall continue until their successors shall have

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 15

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 16

as to the date they are to take effect, publication in the

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 17

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 18

3. What is meant by "publication"?

Resolving their own doubts, the petitioners suggest that

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 19

Interpretative regulations and those merely internal in nature,

We hold therefore that all statutes, including those of local

Coming now to the original decision, it is true that only four

Covered by this rule are presidential decrees and executive

There is much to be said of the view that the publication

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis) 20

publication, or on another date specified by the legislature, in

MANILA PRINCE HOTEL v. GSIS

We also hold that the publication must be made forthwith or