XM

PASCUAL V SECRETARY
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10405
December 29, 1960
WENCESLAO PASCUAL, in his official capacity as Provincial Governor of

Rizal, petitioner-appellant,
vs.
THE SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, ET AL., respondentsappellees.
Asst. Fiscal Noli M. Cortes and Jose P. Santos for appellant.
Office of the Asst. Solicitor General Jose G. Bautista and Solicitor A. A. Torres for appellee.
CONCEPCION, J.:
Appeal, by petitioner Wenceslao Pascual, from a decision of the Court of First Instance of
Rizal, dismissing the above entitled case and dissolving the writ of preliminary injunction
therein issued, without costs.
On August 31, 1954, petitioner Wenceslao Pascual, as Provincial Governor of Rizal,
instituted this action for declaratory relief, with injunction, upon the ground that Republic Act
No. 920, entitled "An Act Appropriating Funds for Public Works", approved on June 20, 1953,
contained, in section 1-C (a) thereof, an item (43[h]) of P85,000.00 "for the construction,
reconstruction, repair, extension and improvement" of Pasig feeder road terminals (Gen.
Roxas Gen. Araneta Gen. Lucban Gen. Capinpin Gen. Segundo Gen.
Delgado Gen. Malvar Gen. Lim)"; that, at the time of the passage and approval of said
Act, the aforementioned feeder roads were "nothing but projected and planned subdivision
roads, not yet constructed, . . . within the Antonio Subdivision . . . situated at . . . Pasig, Rizal"
(according to the tracings attached to the petition as Annexes A and B, near Shaw
Boulevard, not far away from the intersection between the latter and Highway 54), which
projected feeder roads "do not connect any government property or any important premises
to the main highway"; that the aforementioned Antonio Subdivision (as well as the lands on
which said feeder roads were to be construed) were private properties of respondent Jose C.
Zulueta, who, at the time of the passage and approval of said Act, was a member of the
Senate of the Philippines; that on May, 1953, respondent Zulueta, addressed a letter to the
Municipal Council of Pasig, Rizal, offering to donate said projected feeder roads to the
municipality of Pasig, Rizal; that, on June 13, 1953, the offer was accepted by the council,
subject to the condition "that the donor would submit a plan of the said roads and agree to
change the names of two of them"; that no deed of donation in favor of the municipality of
Pasig was, however, executed; that on July 10, 1953, respondent Zulueta wrote another
letter to said council, calling attention to the approval of Republic Act. No. 920, and the sum
of P85,000.00 appropriated therein for the construction of the projected feeder roads in
question; that the municipal council of Pasig endorsed said letter of respondent Zulueta to
the District Engineer of Rizal, who, up to the present "has not made any endorsement
thereon" that inasmuch as the projected feeder roads in question were private property at the
time of the passage and approval of Republic Act No. 920, the appropriation of P85,000.00
therein made, for the construction, reconstruction, repair, extension and improvement of said
projected feeder roads, was illegal and, therefore, void ab initio"; that said appropriation of
P85,000.00 was made by Congress because its members were made to believe that the
projected feeder roads in question were "public roads and not private streets of a private
subdivision"'; that, "in order to give a semblance of legality, when there is absolutely none, to
the aforementioned appropriation", respondents Zulueta executed on December 12, 1953,
while he was a member of the Senate of the Philippines, an alleged deed of donation
copy of which is annexed to the petition of the four (4) parcels of land constituting said
projected feeder roads, in favor of the Government of the Republic of the Philippines; that
said alleged deed of donation was, on the same date, accepted by the then Executive
Secretary; that being subject to an onerous condition, said donation partook of the nature of
a contract; that, such, said donation violated the provision of our fundamental law prohibiting
members of Congress from being directly or indirectly financially interested in any contract
with the Government, and, hence, is unconstitutional, as well as null and void ab initio, for
the construction of the projected feeder roads in question with public funds would greatly
enhance or increase the value of the aforementioned subdivision of respondent Zulueta,
"aside from relieving him from the burden of constructing his subdivision streets or roads at
his own expense"; that the construction of said projected feeder roads was then being
undertaken by the Bureau of Public Highways; and that, unless restrained by the court, the
respondents would continue to execute, comply with, follow and implement the
aforementioned illegal provision of law, "to the irreparable damage, detriment and prejudice
not only to the petitioner but to the Filipino nation."
Petitioner prayed, therefore, that the contested item of Republic Act No. 920 be declared null
and void; that the alleged deed of donation of the feeder roads in question be "declared
unconstitutional and, therefor, illegal"; that a writ of injunction be issued enjoining the
Secretary of Public Works and Communications, the Director of the Bureau of Public Works
and Highways and Jose C. Zulueta from ordering or allowing the continuance of the abovementioned feeder roads project, and from making and securing any new and further releases
on the aforementioned item of Republic Act No. 920, and the disbursing officers of the
Department of Public Works and Highways from making any further payments out of said
funds provided for in Republic Act No. 920; and that pending final hearing on the merits, a
writ of preliminary injunction be issued enjoining the aforementioned parties respondent from
making and securing any new and further releases on the aforesaid item of Republic Act No.
920 and from making any further payments out of said illegally appropriated funds.
Respondents moved to dismiss the petition upon the ground that petitioner had "no legal
capacity to sue", and that the petition did "not state a cause of action". In support to this
motion, respondent Zulueta alleged that the Provincial Fiscal of Rizal, not its provincial
governor, should represent the Province of Rizal, pursuant to section 1683 of the Revised
Administrative Code; that said respondent is " not aware of any law which makes illegal the
appropriation of public funds for the improvements of . . . private property"; and that, the
constitutional provision invoked by petitioner is inapplicable to the donation in question, the
same being a pure act of liberality, not a contract. The other respondents, in turn, maintained
that petitioner could not assail the appropriation in question because "there is no actual bona
fide case . . . in which the validity of Republic Act No. 920 is necessarily involved" and
petitioner "has not shown that he has a personal and substantial interest" in said Act "and
that its enforcement has caused or will cause him a direct injury."
Acting upon said motions to dismiss, the lower court rendered the aforementioned decision,
dated October 29, 1953, holding that, since public interest is involved in this case, the
Provincial Governor of Rizal and the provincial fiscal thereof who represents him therein,
"have the requisite personalities" to question the constitutionality of the disputed item of
Republic Act No. 920; that "the legislature is without power appropriate public revenues for
anything but a public purpose", that the instructions and improvement of the feeder roads in
question, if such roads where private property, would not be a public purpose; that, being
subject to the following condition:
The within donation is hereby made upon the condition that the Government of the
Republic of the Philippines will use the parcels of land hereby donated for street
purposes only and for no other purposes whatsoever; it being expressly understood
that should the Government of the Republic of the Philippines violate the condition
hereby imposed upon it, the title to the land hereby donated shall, upon such
violation, ipso facto revert to the DONOR, JOSE C. ZULUETA. (Emphasis supplied.)
which is onerous, the donation in question is a contract; that said donation or contract is
"absolutely forbidden by the Constitution" and consequently "illegal", for Article 1409 of the
Civil Code of the Philippines, declares in existence and void from the very beginning
contracts "whose cause, objector purpose is contrary to law, morals . . . or public policy"; that
the legality of said donation may not be contested, however, by petitioner herein, because
his "interest are not directly affected" thereby; and that, accordingly, the appropriation in
question "should be upheld" and the case dismissed.
At the outset, it should be noted that we are concerned with a decision granting the
aforementioned motions to dismiss, which as much, are deemed to have admitted
hypothetically the allegations of fact made in the petition of appellant herein. According to
said petition, respondent Zulueta is the owner of several parcels of residential land situated
in Pasig, Rizal, and known as the Antonio Subdivision, certain portions of which had been
reserved for the projected feeder roads aforementioned, which, admittedly, were private
property of said respondent when Republic Act No. 920, appropriating P85,000.00 for the
"construction, reconstruction, repair, extension and improvement" of said roads, was passed
by Congress, as well as when it was approved by the President on June 20, 1953. The
petition further alleges that the construction of said roads, to be undertaken with the
aforementioned appropriation of P85,000.00, would have the effect of relieving respondent
Zulueta of the burden of constructing his subdivision streets or roads at his own
expenses, 1and would "greatly enhance or increase the value of the subdivision" of said
respondent. The lower court held that under these circumstances, the appropriation in
question was "clearly for a private, not a public purpose."
Respondents do not deny the accuracy of this conclusion, which is self-evident. 2However,
respondent Zulueta contended, in his motion to dismiss that:
A law passed by Congress and approved by the President can never be illegal
because Congress is the source of all laws . . . Aside from the fact that movant is not
aware of any law which makes illegal the appropriation of public funds for the
improvement of what we, in the meantime, may assume as private property . . .
(Record on Appeal, p. 33.)
The first proposition must be rejected most emphatically, it being inconsistent with the nature
of the Government established under the Constitution of the Republic of the Philippines and
the system of checks and balances underlying our political structure. Moreover, it is refuted
by the decisions of this Court invalidating legislative enactments deemed violative of the
Constitution or organic laws. 3
As regards the legal feasibility of appropriating public funds for a public purpose, the
principle according to Ruling Case Law, is this:
It is a general rule that the legislature is without power to appropriate public revenue
for anything but a public purpose. . . . It is the essential character of the direct object
of the expenditure which must determine its validity as justifying a tax, and not the
magnitude of the interest to be affected nor the degree to which the general
advantage of the community, and thus the public welfare, may be ultimately benefited
by their promotion. Incidental to the public or to the state, which results from the
promotion of private interest and the prosperity of private enterprises or business,
does not justify their aid by the use public money. (25 R.L.C. pp. 398-400; Emphasis
supplied.)
The rule is set forth in Corpus Juris Secundum in the following language:
In accordance with the rule that the taxing power must be exercised for public
purposes only, discussed suprasec. 14, money raised by taxation can be
expended only for public purposes and not for the advantage of private individuals.
(85 C.J.S. pp. 645-646; emphasis supplied.)
Explaining the reason underlying said rule, Corpus Juris Secundum states:
Generally, under the express or implied provisions of the constitution, public funds
may be used only for public purpose. The right of the legislature to appropriate funds
is correlative with its right to tax, and, under constitutional provisions against taxation
except for public purposes and prohibiting the collection of a tax for one purpose and
the devotion thereof to another purpose, no appropriation of state funds can be
made for other than for a public purpose.
xxx
xxx
xxx
The test of the constitutionality of a statute requiring the use of public funds is
whether the statute is designed to promote the public interest, as opposed to the
furtherance of the advantage of individuals, although each advantage to individuals
might incidentally serve the public. (81 C.J.S. pp. 1147; emphasis supplied.)
Needless to say, this Court is fully in accord with the foregoing views which, apart from being
patently sound, are a necessary corollary to our democratic system of government, which, as
such, exists primarily for the promotion of the general welfare. Besides, reflecting as they do,
the established jurisprudence in the United States, after whose constitutional system ours
has been patterned, said views and jurisprudence are, likewise, part and parcel of our own
constitutional law.
lawphil.net
This notwithstanding, the lower court felt constrained to uphold the appropriation in question,
upon the ground that petitioner may not contest the legality of the donation above referred to
because the same does not affect him directly. This conclusion is, presumably, based upon
the following premises, namely: (1) that, if valid, said donation cured the constitutional
infirmity of the aforementioned appropriation; (2) that the latter may not be annulled without a
previous declaration of unconstitutionality of the said donation; and (3) that the rule set forth
in Article 1421 of the Civil Code is absolute, and admits of no exception. We do not agree
with these premises.
The validity of a statute depends upon the powers of Congress at the time of its passage or
approval, not upon events occurring, or acts performed, subsequently thereto, unless the
latter consists of an amendment of the organic law, removing, with retrospective operation,
the constitutional limitation infringed by said statute. Referring to the P85,000.00
appropriation for the projected feeder roads in question, the legality thereof depended upon
whether said roads were public or private property when the bill, which, latter on, became
Republic Act 920, was passed by Congress, or, when said bill was approved by the
President and the disbursement of said sum became effective, or on June 20, 1953 (see
section 13 of said Act). Inasmuch as the land on which the projected feeder roads were to be
constructed belonged then to respondent Zulueta, the result is that said appropriation sought
a private purpose, and hence, was null and void. 4 The donation to the Government, over
five (5) months after the approval and effectivity of said Act, made, according to the petition,
for the purpose of giving a "semblance of legality", or legalizing, the appropriation in
question, did not cure its aforementioned basic defect. Consequently, a judicial nullification of
said donation need not precede the declaration of unconstitutionality of said appropriation.
Again, Article 1421 of our Civil Code, like many other statutory enactments, is subject to
exceptions. For instance, the creditors of a party to an illegal contract may, under the
conditions set forth in Article 1177 of said Code, exercise the rights and actions of the latter,
except only those which are inherent in his person, including therefore, his right to the
annulment of said contract, even though such creditors are not affected by the same, except
indirectly, in the manner indicated in said legal provision.
Again, it is well-stated that the validity of a statute may be contested only by one who will
sustain a direct injury in consequence of its enforcement. Yet, there are many decisions
nullifying, at the instance of taxpayers, laws providing for the disbursement of public
funds, 5upon the theory that "the expenditure of public funds by an officer of the State for the
purpose of administering an unconstitutional act constitutes a misapplication of such funds,"
which may be enjoined at the request of a taxpayer. 6Although there are some decisions to
the contrary, 7the prevailing view in the United States is stated in the American Jurisprudence
as follows:
In the determination of the degree of interest essential to give the requisite standing
to attack the constitutionality of a statute, the general rule is that not only persons
individually affected, but also taxpayers, have sufficient interest in preventing the
illegal expenditure of moneys raised by taxation and may therefore question the
constitutionality of statutes requiring expenditure of public moneys. (11 Am. Jur. 761;
emphasis supplied.)
However, this view was not favored by the Supreme Court of the U.S. in Frothingham vs.
Mellon (262 U.S. 447), insofar as federal laws are concerned, upon the ground that the
relationship of a taxpayer of the U.S. to its Federal Government is different from that of a
taxpayer of a municipal corporation to its government. Indeed, under thecomposite system of
government existing in the U.S., the states of the Union are integral part of the Federation
from an international viewpoint, but, each state enjoys internally a substantial measure of
sovereignty, subject to the limitations imposed by the Federal Constitution. In fact, the same
was made by representatives of each state of the Union, not of the people of the U.S.,
except insofar as the former represented the people of the respective States, and the people
of each State has, independently of that of the others, ratified said Constitution. In other
words, the Federal Constitution and the Federal statutes have become binding upon the
people of the U.S. in consequence of an act of, and, in this sense, through the respective
states of the Union of which they are citizens. The peculiar nature of the relation between
said people and the Federal Government of the U.S. is reflected in the election of its
President, who is chosen directly, not by the people of the U.S., but by electors chosen
by each State, in such manner as the legislature thereof may direct (Article II, section 2, of
the Federal Constitution).
lawphi1.net
The relation between the people of the Philippines and its taxpayers, on the other hand, and
the Republic of the Philippines, on the other, is not identical to that obtaining between the
people and taxpayers of the U.S. and its Federal Government. It is closer, from a domestic
viewpoint, to that existing between the people and taxpayers of each state and the
government thereof, except that the authority of the Republic of the Philippines over the
people of the Philippines is more fully direct than that of the states of the Union, insofar as
the simple and unitary type of our national government is not subject to limitations analogous
to those imposed by the Federal Constitution upon the states of the Union, and those
imposed upon the Federal Government in the interest of the Union. For this reason, the rule
recognizing the right of taxpayers to assail the constitutionality of a legislation appropriating
local or state public funds which has been upheld by the Federal Supreme Court
(Crampton vs. Zabriskie, 101 U.S. 601) has greater application in the Philippines than that
adopted with respect to acts of Congress of the United States appropriating federal funds.
Indeed, in the Province of Tayabas vs. Perez (56 Phil., 257), involving the expropriation of a
land by the Province of Tayabas, two (2) taxpayers thereof were allowed to intervene for the
purpose of contesting the price being paid to the owner thereof, as unduly exorbitant. It is
true that in Custodio vs. President of the Senate (42 Off. Gaz., 1243), a taxpayer and
employee of the Government was not permitted to question the constitutionality of an
appropriation for backpay of members of Congress. However, in Rodriguez vs. Treasurer of
the Philippines and Barredo vs.Commission on Elections (84 Phil., 368; 45 Off. Gaz., 4411),
we entertained the action of taxpayers impugning the validity of certain appropriations of
public funds, and invalidated the same. Moreover, the reason that impelled this Court to take
such position in said two (2) cases the importance of the issues therein raised is
present in the case at bar. Again, like the petitioners in the Rodriguez and Barredo cases,
petitioner herein is not merely a taxpayer. The Province of Rizal, which he represents
officially as its Provincial Governor, is our most populated political subdivision, 8and, the
taxpayers therein bear a substantial portion of the burden of taxation, in the Philippines.
Hence, it is our considered opinion that the circumstances surrounding this case sufficiently
justify petitioners action in contesting the appropriation and donation in question; that this
action should not have been dismissed by the lower court; and that the writ of preliminary
injunction should have been maintained.
Wherefore, the decision appealed from is hereby reversed, and the records are remanded to
the lower court for further proceedings not inconsistent with this decision, with the costs of
this instance against respondent Jose C. Zulueta. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez
David, Paredes, and Dizon, JJ., concur.
Footnotes
1 For, pursuant to section 19(h) of the existing rules and regulation of the Urban
Planning Commission, the owner of a subdivision is under obligation "to improve,
repair and maintain all streets, highways and other ways in his subdivision until their
dedication to public use is accepted by the government."
2 Ex parte Bagwell, 79 P. 2d. 395; Road District No. 4 Shelby County vs. Allred. 68
S.W 2d 164; State ex rel. Thomson vs. Giessel, 53-N.W. 2d. 726, Attorney
General vs. City of Eau Claire, 37 Wis. 400; State ex rel. Smith vs. Annuity Pension
Board, 241 Wis. 625, 6 N.W. 2d. 676; State vs. Smith, 293 N.W. 161;
State vs.Dammann 280 N.W. 698; Sjostrum vs. State Highway Commission 228 P.
2d. 238; Hutton vs. Webb, 126 N.C. 897, 36 S.E. 341; Michigan Sugar
Co. vs. Auditor General, 124 Mich. 674, 83 N.W. 625; Oxnard Beet Sugar
Co. vs. State, 105 N.W. 716.
3 Casanovas vs. Hord. 8 Phil., McGirr vs. Hamilton, 30 Phil., 563; Compania General
de Tabacos vs. Board of Public Utility, 34 Phil., 136; Central Capiz vs. Ramirez, 40
Phil., 883; Concepcion vs. Paredes, 42 Phil., 599; U.S. vs. Ang Tang Ho, 43 Phil., 6;
McDaniel vs. Apacible, 44 Phil., 248; People vs. Pomar, 46 Phil., 440;
Agcaoili vs. Suguitan, 48 Phil., 676; Government of P.I. vs. Springer, 50 Phil., 259;
Manila Electric Co. vs.Pasay Transp. Co., 57 Phil., 600; People vs. Linsangan, 62
Phil., 464; People and Hongkong & Shanghai Banking Corp. vs. Jose O. Vera, 65
Phil., 56; People vs. Carlos, 78 Phil., 535; 44 Off. Gaz. 428; In re Cunanan, 94 Phil.,
534; 50 Off. Gaz., 1602; City of Baguio vs. Nawasa, 106 Phil., 144; City of
Cebu vs.Nawasa, 107 Phil., 1112; Rutter vs. Esteban, 93 Phil., 68; Off. Gaz., [5]1807.
4 In the language of the Supreme Court of Nebraska, "An unconstitutional statute is
a legal still birth, which neither moves, nor breathes, nor holds out any sign of life. It
is a form without one vital spark. It is wholly dead from the time of conception, and,
no right, either legal or equitable, arises from such inanimate thing." (Oxnard Beet
Sugar Co. vs. State, 102 N.W. 80.).
5 See, among others, Livermore, vs. Waite, 102 Cal. 113, 25 L.R.A. 312,36 P. 424;
Crawford vs. Gilchrist, 64 Fla. 41, 59 So. 963; Lucas vs. American Hawaiian
Engineering and Constr. Co., 16 Haw. 80; Castle vs.Capena, 5 Haw. 27;
Littler vs. Jayne, 124 Ill. 123, 16 N.E. 374; Burke vs. Snively, 208 I11. 328, 70 N.E.
372; Ellingham vs. Dye, 178 Ind. 336, 99 N.E. 1; Christmas vs. Warfield, 105 Md.
536; Sears vs. Steel, 55 Or. 544, 107 Pac. 3; State ex rel. Taylor vs. Pennover, 26 Or.
205, 37 Pac. 906; Carman vs. Woodruf, 10 Or. 123; MacKinley vs. Watson, 145 Pac.
266; Sears vs. James, 47 Or. 50, 82 Pac. 14; Mott vs. Pennsylvania R. Co., 30 Pa. 9,
72 Am. Dec. 664; Bradly vs. Power County, 37 Am. Dec. 563; Frost vs. Thomas, 26
Colo. 227, 77 Am. St. Rep. 259, 56 Pac. 899; Martin vs. Ingham, 38 Kan. 641, 17
Pac. 162; Martin vs. Lacy, 39 Kan. 703, 18 Pac. 951; Smith vs. Maguerich, 44 Ga.
163; Giddings vs. Blacker, 93 Mich. 1, 16 L.R.A. 402, 52 N.W. 944; Rippe vs. Becker,
56 Minn. 100, 57 N.W. 331; Auditor vs. Treasurer, 4 S.C. 311; McCullough vs. Brown,
31 S.C. 220, 19 S.E. 458; State ex rel. Lamb vs. Cummingham, 83 Wis. 90, 53 N.W.
35; State ex rel. Rosenhianvs. Frear, 138 Wis. 173, 119 N.W. 894.
6 Rubs vs. Thompson, 56 N.E. 2d. 761; Reid vs. Smith, 375 Ill. 147, 30N. E. 2d. 908;
Fergus vs. Russel, 270 Ill. 304, 110 N.E. 130; Burke vs. Snively, 208 Ill. 328;
Jones vs. Connell, 266 Ill. 443, 107 N.E. 731; Dudick vs.Baumann, 349 [PEPSI] Ill.
46, 181 N.E. 690.
7 Thompson vs. Canal Fund Comps., 2 Abb. Pr. 248; Shieffelin vs. Komfort, 212 N.Y.
520, 106 N.E. 675; Hutchison vs. Skinmer, 21 Misc. 729, 49N. Y. Supp. 360;
Long vs. Johnson, 70 Misc. 308; 127 N.Y. Supp. 756; Whiteback vs. Hooker, 73 Misc.
573, 133 N.Y. Supp. 534; State ex rel. Cranmer vs. Thorson, 9 S.D. 149, 68 N.W.
202; Davenport vs. Elrod, 20 S.D. 567, 107 N.W. 833; Indiana Jones vs. Reed, 3
Wash. 57, 27 Pac. 1067; Birmingham vs. Cheetham, 19 Wash. 657, 54 Pac. 37;
Tacoma vs. Bridges, 25 Wash. 221, 65 Pac. 186; Hilger vs. State, 63 Wash. 457, 116
Pac. 19.
8 It has 1,463,530 inhabitants.
BUGNAY CONSTRUCTION V LARON

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79983 August 10, 1989
BUGNAY CONSTRUCTION AND DEVELOPMENT CORPORATION, petitioner,
vs.
HON. CRISPIN C. LARON Judge of the Court of First Instance (RTC), Branch 44,
Dagupan City, P AND M AGRO-DEVELOPMENT CORPORATION and REGINO
RAVANZO, JR., respondents.
Rodolfo Q. Agbayani for petitioner.
Regino R. Ravanzo, Jr. for respondents.
REGALADO, J.:
Respondent judge is taken to task in this special civil action for certiorari for having issued
the following orders and writ, viz: (1) order, dated August 5, 1987, denying the motion to
dismiss filed in Civil Case No. D-8696; (2) order, dated August 7,1987, denying the motion
for reconsideration of the preceding order; (3) order of August 12, 1987 for the issuance of a
writ of preliminary injunction; and (4) writ of preliminary injunction issued on August 14, 1987.
The records show that on March 3,1978, the City of Dagupan (City, for short) awarded a
lease contract 1 in favor of respondent P and M Agro-Development Corporation (hereinafter, P
and M) over a city lot called the Magsaysay Market Area with an approximate area of three
thousand six hundred ninety-two (3,692) square meters. By reason of P and M's failure to comply
with the conditions of the contract, the City filed on May 25, 1982 an action to rescind the lease
contract with the Regional Trial Court of Pangasinan in Dagupan City, Branch 41, and docketed
therein as Civil Case No. D-6157. 2 This case was decided on January 16,1985 3 in favor of the
City on the basis of a "Joint Manifestation" of both parties, dated September 20, 1984. 4 Upon
motion of the City, a writ of execution was issued on September 26, 1985 5 ordering the
immediate delivery of the possession of the premises to the movant City.
Thereafter, on November 5, 1985, P and M filed a motion for the reconsideration of the
aforesaid decision. However, it was only on August 17,1987 when the incident was
resolved 6 by the court which set aside the decision previously rendered on the ground that the
joint manifestation on which it was based is not in the nature of a compromise agreement for the
following reasons: (1) the joint manifestation was not signed by the party plaintiff; (2) the said
pleading did not pray that a decision be rendered based thereon; (3) if the parties really intended
it to be a compromise agreement, they should have entitled it as such; (4) the parties agreed that
the joint manifestation is without prejudice to the continuance of the case, which is contrary to the
very nature of a compromise agreement in that it terminates the case upon the court's approval
thereof ; (5) the joint manifestation did not specify the "proposed terms and conditions" offered by
P and M, hence it cannot be a valid basis for a judgment on compromise which requires that the
terms and conditions be spelled out clearly in order that the court may determine whether they
are in accordance with law, public policy, public order, and good customs; and (6) the alleged
proposals are subject to the review of the proper government agencies, which is not allowed in a
judgment on compromise wherein only the court may determine the legality thereof. 7 The City's
motion for the reconsideration of said resolution which set aside the decision rendered in Civil
Case No. D-6157 was denied by said trial court in an order dated October 26, 1987. 8
It appears, however, that on April 20, 1987, during the pendency of the resolution on the
motion for reconsideration filed by P and M in Civil Case No. D-6157, the Sangguniang
Panlungsod of the City of Dagupan adopted Resolution No. 1462-87 "Authorizing the City
Mayor, Honorable Liberate Ll. Reyna, Sr., to Enter Into a Contract of Lease with Bugnay
Construction and Development Corporation over that Parcel of Lot owned by the City of
Dagupan. 9 On April 27, 1987, pursuant to said resolution, herein petitioner entered into a
contract of lease 10 with the City over the Magsaysay Market Area, wherein petitioner agreed to
finance, establish, construct, develop, manage, operate, maintain, control and supervise a
commercial center and a modern public market building, paying a monthly rental of eight pesos
(P8.00) per square meter, for a period of twenty (20) years to begin from the date when the
stallholders in the area aforementioned shall be relocated, with the obligation to turn over, without
demand, the entire market building and all attached appurtenances to the lessor City upon the
expiration of the lease period. Upon the fulfillment of the condition for the commencement of the
term of the lease, i.e., the relocation of the stallholders in the area, petitioner immediately started
its construction work.
On June 15, 1987, P and M, through its counsel, herein private respondent Regino R.
Ravanzo, Jr., filed an action11 for "Injunction with Prayer for Preliminary Injunction and
Temporary Restraining Order, Annulment of Contract, and Damages" against the City, its officials
and herein petitioner, which case was docketed as Civil Case No. D-8664 and assigned to
Branch 43 of the Regional Trial Court in Dagupan City. In its complaint, P and M averred that
inasmuch as Civil Case No. D-6157 was still pending, its lease contract with the City continued to
exist, hence the lease contract executed by the City with herein petitioner is allegedly null and
void ab initio and an ultra vires act. P and M consequently prayed that petitioner be enjoined from
continuing with the construction of the market building. A temporary restraining order 12 initially
issued by said Branch 43 on June 19, 1987 was subsequently dissolved in its order dated June
30, 1987, 13 on the ground that no great or irreparable injury would result to the therein applicant P
and M if no restraining order will be issued. Thereafter, the defendants therein filed their
respective pleadings.
On July 17, 1987, private respondent Regino R. Ravanzo, Jr., professedly in his capacity as
a resident and taxpayer of Dagupan City, filed with the Regional Trial Court in Dagupan City
the present action for "Injunction with Preliminary Injunction and Temporary Restraining
Order and Damages" against the City of Dagupan, the City Mayor and herein petitioner
which was docketed as Civil Case No. D-8696, and, this time, was assigned to Branch 44 of
said court presided over by herein respondent judge. 14 As party plaintiff therein and, on the
basis of the very same facts alleged in Civil Case No. D-8664, herein private respondent
Ravanzo attacked the legality of the contract of lease entered into between the City and
petitioner, alleging thirty (30) reasons in his complaint why the contract should be declared null
and void, and prayed for the issuance of a writ of injunction directing petitioner to desist from
continuing with the questioned construction. On July 24, 1 987, respondent judge issued a
restraining order 15 enjoining herein petitioner from continuing with the construction of the
Magsaysay Market building.
On July 28,1987, the City and its Acting Mayor filed a motion to dismiss 16 on the grounds that
therein plaintiff Ravanzo is not the real party in interest; the complaint states no cause of action;
there is another action (Civil Case No. D-8664) pending between the same parties involving the
same subject matter, issues, purpose and prayer; and, in effect, there was forum-shopping.
On August 5,1987, respondent judge issued an order 17 denying the motion to dismiss. The
motion for reconsideration,18 filed by the City was likewise denied in an order dated August
7,1987. 19
Thereafter, respondent judge granted the filing of a bond by respondent Ravanzo in the
amount of one hundred thousand pesos (Pl00,000.00), in his order of August 12, 1987 20 as a
consequence of which a writ of preliminary injunction 21 was issued on August 14,1987.
Hence, this petition.
We have recast, for brevity, the following determinative issues raised by petitioner for
resolution, viz:
1. Whether or not the respondent judge committed grave abuse of discretion,
when, instead of dismissing the alleged taxpayer's suit (Civil Case No. D8696), he instead issued the writ of preliminary injunction prayed for by
respondent Ravanzo, in spite of the clear pendency of another action
between the same parties for the same cause;
2. Whether or not the respondent judge committed a grave abuse of
discretion when he denied the motion to dismiss Civil Case No. D-8696, by
refusing to recognize that the herein respondent Ravanzo does not have any
personality to file a taxpayer's suit hence he has no cause of action against
the defendants in the court a quo; and
3. Whether or not under the facts of this case the private respondents were
guilty of forum-shopping.
We find for the petitioner.
This petition is a proper recourse from the assailed orders of respondent judge. While
generally an order denying a motion to dismiss is interlocutory and not appealable, where
such denial was issued with grave abuse of discretion or is without or in excess of
jurisdiction, the extraordinary writs of certiorari and prohibition will lie. 22
It is readily apparent from ajudicious perusal and evaluation of the pleadings filed in Civil
Case No. D-8696 that duly raised in issue therein was the pendency of another case
between the same parties for the same cause; that in said Civil Case No. D-8696, therein
plaintiff Ravanzo was neither a real party in interest nor could he have validly maintained
said case as a so-called taxpayer's suit; and that these considerations, in tandem, virtually
dictated that said case should have been dismissed outright.
On the pendency of another action between the same parties for the same cause, or litis
pendentia as a ground for dismissal, there must be between the action under consideration
and the other action (1) identity of the parties or at least such as represent the same interest
in both actions, (2) identity of the rights asserted and prayed for, the relief being founded on
the same facts, (3) the identity in both cases is such that the judgment which may be
rendered in the pending case, regardless of which party is successful, would amount to res
judicata in the other case. 23 This ground is also referred to as lis pendens or auter action
pendant. 24
In the case at bar, while it may superficially appear that there are two different plaintiffs in the
prior case and in the present action, namely, P and M in Civil Case No. D-8664 and Regino
R. Ravanzo, Jr. in Civil Case No. D-8696, there can be no dispute that both represent the
same interest. It is admitted that Ravanzo is the counsel of record of P and M in Civil Case
No. D-8664. As seen earlier, after the restraining order in said case was lifted and P and M's
prayer for preliminary injunction to restrain herein petitioner from continuing with the
construction of the market building in the aforesaid case was not acted upon, Ravanzo
personally applied for another temporary restraining order and another writ of preliminary
injunction to enjoin the very same act of construction, this time under the guise of a taxpayer
suit with himself as the plaintiff in Case No. D-8696. It is all too ludicrously transparent and
readily apparent that respondent Ravanzo merely sought in another branch of the same
court, figuratively using the hat of a taxpayer, what he failed to obtained in one branch, under
the hat of a representing counsel. His allegation that he has no interest in common
whatsoever with P and M is an affront to the credulity and patience of this Court. He even
belied his own misrepresentation in the present proceedings before this Court wherein he
appeared and filed common pleadings for and behalf of himself and P and M.
P and M, through its said counsel, respondent Ravanzo, alleged in Civil Case No. D-8664
that it is the holder of the previous lease award for the Magsaysay Market; that on May 25,
1982, the City of Dagupan filed a suit to rescind such contract, the case having been
docketed as Civil Case No. D-6157 in Branch 41 of the Regional Trial Court in Dagupan City;
that a decision was promulgated in the said case on January 16, 1985 but it filed a motion to
set aside such decision on November 5, 1985, which motion had not been resolved; that on
April 20,1987, the Sangguniang Panlungsod of Dagupan City passed Resolution No. 146287 authorizing City Mayor Liberato Ll. Reyna to enter into a contract of lease over the
Magsaysay Market with petitioner Bugnay Construction and Development Corporation and
on April 27, 1987 the City represented by Mayor Reyna, and petitioner entered into a
contract of lease over the Magsaysay Market; that inasmuch as Civil Case No. D-6157 was
still pending, the previous lease contract in favor of P and M was still subsisting, hence the
City could not lease the premises to another party; that the enactment of Resolution No.
1462-87, the execution of the lease contract with petitioner corporation and the construction
by petitioner of the commercial center all constitute an unwarranted and abusive exercise of
power that deprives P and M of its property without due process and is an ultra vires act.
These are basically the same allegations raised in Civil Case No. D-8696 with respondent
Ravanzo as plaintiff.
There is regrettable vacuity in respondent Ravanzo's insistence that he is suing for
"Injunction with Prayer for Preliminary Injunction and Temporary Restraining Order" whereas
P and M's action is for "Injunction with Prayer for Preliminary Injunction, Annulment of
Contract and Temporary Restraining Order" which actions, so he claims, seek distinct and
different reliefs. Indeed, it is empty verbiage to deny that in Case No. D-8696 Ravanzo is
actually asking for the declaration of the nullity of the lease contract executed by the City and
petitioner, which is also what is prayed for by P and M in Case No. D-8664.
Undeniably, whatever judgment may be rendered in Case No. D-8664 will necessarily
constitute res judicata in Case No. D-8696. And, it is too entrenched a rule brooking no
dissent that a party cannot, by varying the form of action or adopting a different method of
presenting his case, escape theation of the principle that one and the same cause of action
shall not be twice litigated. 25
The trial court, in taking cognizance of the purported taxpayer's suit, declared that
respondent Ravanzo has the legal capacity to sue since his interest as a taxpayer is directly
affected by the alleged ultra vires act of the City of Dagupan, invoking the doctrine
enunciated in City Council of Cebu City, etc., et al. vs. Carlos J. Cuizon etc., et al.,26 to wit:
Plaintiffs' right and legal interest as taxpayers to file the suit below and seek
judicial assistance to prevent what they believe to be an attempt to unlawfully
disburse public funds of the city and to contest the expenditure of public
funds under contracts and commitments with defendant bank and Tropical
which they assert to have been entered into by the mayor without legal
authority and against the express prohibition of law have long received the
Court's sanction and recognition. In Gonzales vs. Hechanova, the Court
through the now Chief Justice dismissed the challenge against the sufficiency
of therein petitioner's interest to file the action, stating that 'since the
purchase of said commodity will have to be effected with public funds mainly
raised by taxation, and as a rice producer and landowner petitioner must
necessarily be a taxpayer, it follows that he has sufficient personality and
interest to seek judicial assistance with a view to restraining what he believes
to be an attempt to unlawfully disburse said funds.
Contrarily, it thus results that the trial court's reliance is self-defeating since the very doctrine
cited holds that only when the act complained of directly involves an illegal disbursement of
public funds raised by taxation win the taxpayer's suit be allowed. The essence of a
taxpayer's right to institute such an action hinges on the existence of that requisite pecuniary
or monetary interest.
We accordingly held in Gonzales vs. Marcos, etc., et al . 27 that:
It may not be amiss though to consider briefly both the procedural and
substantive grounds that led to the lower court's order of dismissal. It was
therein pointed out as 'one more valid reason' why such an outcome was
unavoidable that the funds administered by the President of the Philippines
came from donations (and) contributions (not) by taxation. Accordingly, there
was that absence of the requisite pecuniary or monetary interest.'. . . It is only
to make clear that petitioner, judged by orthodox legal learning, has not
satisfied the elemental requisite for a taxpayer's suit. ...
Objections to a taxpayer's suit for lack of sufficient personality standing or interest are
procedural matters. Considering the importance to the public of a suit assailing the
constitutionality of a tax law, and in keeping with the Court's duty, specially explicated in the
1987 Constitution, to determine whether or not the other branches of the Government have
kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Supreme Court may brush aside technicalities of
procedure and take cognizance of the suit. 28
However, for the above rule to apply, it is exigent that the taxpayer-plaintiff sufficiently show
that he would be benefited or injured by the judgment or entitled to the avails of the suit as a
real party in interest. 29 Before he can invoke the power of judicial review, he must specifically
prove that he has sufficient interest in preventing the illegal expenditure of money raised by
taxation 30 and that he wig sustain a direct injury as a result of the enforcement of the questioned
statute or contract. 31 It is not sufficient that he has merely a general interest common to an
members of the public. 32
On its face, and there is no evidence to the contrary, the lease contract entered into between
petitioner and the City shows that no public funds have been or will be used in the
construction of the market building. The terms of the contract reveal that petitioner shall
finance the project, the capital investment to be recovered from the rental fees due from the
stallholders. Furthermore, petitioner undertook, at its own expense, to insure the building, to
have the site cleared for construction, and to hire personnel necessary to prevent unfair
competition to its stallholders. It was likewise agreed that suits arising from and in connection
with said construction shall be at the expense of petitioner without right of reimbursement.
Finally, the building shall be turned over at the end of the lease period to the City of Dagupan
as its exclusive owner, also without right of reimbursement. No disbursement of public funds,
legal or otherwise, being involved in the challenged transaction, the locus stand claimed by
plaintiff in Civil Case No. D-8696 is non-existent.
Forum-shopping, an act of malpractice, is proscribed and condemned as trifling with the
courts and abusing their processes. It is improper conduct that degrades the administration
of justice. The rule has been formalized in Paragraph 17 of the Interim Rules and Guidelines
issued by this Court on January 11, 1983, in connection with the implementation of the
Judiciary Reorganization Act. Thus, said Paragraph 17 provides that no petition may be filed
in the then Intermediate Appellate Court, now the Court of Appeals "if another similar petition
has been filed or is still pending in the Supreme Court' and vice-versa. The Rule ordains that
"(a) violation of the rule shall constitute a contempt of court and shall be a cause for the
summary dismissal of both petitions, without prejudice to the taking of appropriate action
against the counsel or party concerned. 33
This rule has been equally applied in the recent case of Limpin, Jr., et al. vs. Intermediate
Appellate Court, et al., 34where the party having filed an action in one branch of the regional trial
court shops for the same remedies of a restraining order and a writ of preliminary injunction in
another branch of the same court. We ruled therein that:
So, too, what has thus tar been said more than amply demonstrates
Sarmiento's and Basa's act of forum shopping. Having failed to obtain the
reliefs to which they were not entitled in the first place from the "Solano
Court," the Court of Appeals, and the Supreme Court, they subsequently
instituted two (2) actions in the 'Beltran Court' for the same purpose, violating
in the process the ruling against splitting causes of action. The sanction is
inescapable: dismissal of both actions, for gross abuse of judicial processes.
That both actions ought to be dismissed is further bolstered by the fact that Branch 43
hearing Civil Case No. D-8664 also acted on the belief that the first action filed by the City
against P and M, Civil Case No. D-6157, constitutes a prejudicial question to Civil Case No.
D-8664 as stated in its resolution of June 30,1987:
.....It is the considered opinion of this Court that the matter of Restraining
Order, Writ of Preliminary Injunction and other forms of redress to the plaintiff
could be better treated upon the result of the (sic) Civil Case No. D-6157
because should the above-mentioned be ultimately decided in favor of the
City of Dagupan, all matters to be treated in the instant case will become
moot and academic. In the event, however, that the P and M Agro
Development prevailed in that case then may be some of the matter (sic)
raised in this case should have been treated in that aforementioned case. Or
some remedies are available to the prevailing party.
Since the Court believes that there is some sort of a prejudicial question
involved in Civil Case No. D-6157, which may affect this case to a certain
extent, then it would not be naive to discreetly wait for the final determination
of Civil Case No. D-6157 and therefore the parties here should be treated in
their previous positions status quo anti (sic) bellum. 35
Hence, as earlier seen, said branch dissolved the restraining order it had previously issued
and does not appear to have taken any further action in the case before it. On all the
foregoing considerations, the dismissal of both Civil Cases Nos. D-8664 and D-8696 is
definitely in order.
Respondent Judge Laron in issuing the writ of preliminary injunction, supposedly relied on
the doctrine enunciated inSabado, et al. vs. Cristina Gonzales, Inc., et al, 36 that a judge of a
branch of the former court of first instance, now the regional trial court, has jurisdiction to issue a
writ of preliminary injunction in a case pending in that branch, although a similar writ had been
denied by another branch of the same court. This is a specious invocation since in said case the
parties involved did not engage in forum shopping by filing two cases based on the same cause
of action in two different branches of the same court. Involved therein were two actions with two
different causes of action, the first being usurpation of real rights by the defendants therein and
the second based on violations of a leasehold grant by the plaintiff in the first action. In the
present controversy, as already demonstrated, the same reliefs of a restraining order and
preliminary injunction were sought apparently in two separate cases which, however, are in a
procedural situation of litis pendentia as to each other, with the same cause of action and the
other elements thereof.
However, equitable considerations and the practical desirability of and necessity for the
resolution of the issues raised in both Civil Cases Nos. D-8664 and D-8696 persuade Us that
the dismissal thereof shall be without prejudice to whatever principal or ancillary remedies
private respondents may deem proper to protect their rights by filing or availing thereof in
Civil Case No. D-6157, or to be consolidated therein or jointly decided therewith, as the
proper forum for the adjudication of all the respective rights and liabilities of the parties
concerned. Consequently, and considering the public purpose of the subject matter in
litigation, the presiding judge of Branch 41 is hereby directed to act with all practicable
dispatch towards the early and judicious termination of the proceedings in Civil Case No. D6157 pending therein and all such other incidents as may hereafter be filed or involved in
said case for the complete determination thereof.
Private respondent Regino R. Ravanzo Jr. is hereby reprimanded for engaging in conduct
equivalent to forum shopping with a stern warning that a repetition of the same or similar
acts in the future will be severely dealt with. For permitting such a state of affairs to take
place in his court, public respondent Judge Crispin C. Laron is hereby strictly admonished to
be more perceptive and circumspect in his judicial appreciation and conduct of cases
assigned to him, with the same warning in the event of a repetition of his actuations herein
complained of.
WHEREFORE, the Court hereby:
1. ORDERS the dismissal of Civil Cases Nos. D-8664 and D-8696 in Branches 43 and 44,
respectively, of the Regional Trial Court, Dagupan City, without prejudice to the filing or
availment of such remedies the parties may deem proper in Civil Case No. D-6157 in Branch
41 of the same court;
2. DISSOLVES the writ of preliminary injunction issued in the aforesaid Civil Case No. D8696; and
3. DIRECTS presiding judge of Branch 41 of the aforesaid court to expedite and terminate
the trial and adjudication of Civil Case No. D-61 57 and all other remedies and incidents that
the parties may properly file and consolidate for determination therein.
SO ORDERED.
Melencio-Herrera, (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.
Footnotes
1 Annex 1, Memorandum for Respondents: Rollo, 495.
2 Annex 2, Id.; Rollo, 499.
4 Rollo, 206-207,
5 Annex B, Motion for Reconsideration of the Lifting of Restraining Order;
Rollo, 409.
6 Annex 4, Memorandum for Respondents; Rollo, 506.
11 Annex M, Id.; Rollo, 515.
13 Annex 1 1, Id.; Rollo, 535.

16 Annex 14, Id.; Rollo, 547-A.
22 Ablan vs. Madarang et al., 41 SCRA 213 (1971); Van Dorn vs. Romillo, et
al., 139 SCRA 139 (1985); Newsweek, Inc. vs. Intermediate Appellate Court,
142 SCRA 171 (1986).
23 Del Rosario, et al. vs. Jacinto, et al., 15 SCRA 15 (1965); Pampanga Bus
Co. vs. Ocfemia et al., 18 SCRA 407 (1966); Drilon vs. Guarana et al., 149
SCRA 342 (1987).
24 Buan, et al, vs. Lopez, Jr., 145 SCRA 34 (1986).
25 Ibabao vs. Intermediate Appellate Court, et al., 150 SCRA 76 (1987);
Sangalang vs. Caparas, et al., 151 SCRA 53 (1987).
26 47 SCRA 325 (1972).
27 65 SCRA 624 (1975).
28 Kapatiran vs. Tan, G.R. No. 81311, June 30, 1988.
29 Estate of George Litton vs. Mendoza, G.R. No. 49120, June 30, 1988.
30 Am. Jur. 761; Dumlao, et al. vs. Commission on Elections, 95 SCRA 392
(1980).
31 Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333 (1976).
32 Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497, Annotation.
33 E. Razon, Inc. et al. vs. Philippine Port Authority, et al., G.R. No. 75197,
Resolution, July 31, 1986.
34 161 SCRA 83 (1988).
35 Rollo, 39.
36 53 Phil. 770 (1928).
NEPA V ONGPIN
SUPREME COURT
Manila
EN BANC
G.R. No. 67752 April 10, 1989
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, ELIZALDE D. DIAZ, JULIO
LOGARTA, JR., ENRIQUE ANGELES, ALFREDO DE LEON AND GEORGE
SIBAL, petitioners,
vs.
THE HONORABLE ROBERTO V. ONGPIN, in his capacity as Minister of Trade and
Industry and Chairman of the Board of Investments, and the HONORABLE GREGORIO
G. MENDOZA, in his capacity as Treasurer of the Philippines, respondents.
Diaz, Corvite & Associates for petitioners.
The Solicitor General for respondents.
PARAS, J.:
This is a petition for prohibition with preliminary injunction praying that: (a) Presidential
Decree No. 1789 otherwise known as the "Omnibus Investment Code," dated January 16,
1981, the 1981 Investment Priorities Plan and Executive Order No. 676 which approved the
said plan dated April 10, 1981; and (b) Presidential Decree No. 1892 which allowed an
increase in foreign equity participation in preferred areas of investment effective for one (1)
year dated December 4, 1983, all be declared unconstitutional.
As gathered from the records, the factual background of this case, is as follows:
On January 16,1981 or one day before President Ferdinand E. Marcos signed Proclamation
No. 2045 announcing the lifting of Martial Law in the Philippines, he, pursuant to his
legislative or decree-making power under both the 1935 Constitution and the transitory
provisions of the 1973 Constitution, issued P.D. No. 1789 otherwise known as the Omnibus
Investment Code, revising, modifying and amending R.A. No. 5186 and R.A. No. 6135, both
enacted by the Congress of the Philippines.
Shortly thereafter or on December 4,1983, President Marcos issued P.D. No. 1892,
suspending for a period of one year from date of its effectivity the nationality requirement of
at least 60% Philippine Nationals for nonpioneer industries entitled to registration under
aforementioned P.D. No. 1789.
Petitioner NEPA, suing as citizens of the Philippines, taxpayers, businessmen, officers and
members of said association, who allegedly stand to be adversely affected by the
enforcement or continued enforcement of the aforementioned presidential decrees (Rollo,
pp. 1-4) filed the instant petition in this Court, seeking to enjoin public respondents from
enforcing said decrees as well as "The Investment Priorities Plan" actually a memorandum of
the Minister of Trade to the President, consisting of preferred areas of economic activity that
are entitled to investment incentives under P.D. No. 1789 and Executive Order No. 676,
entitled "Approving the 1981 Investment Priorities Plan," on the ground that they are
unconstitutional; and after hearing declare them as such.
Petitioners maintain the position that the President of the Philippines has no absolute
legislative power during martial law but only limited to the decree- making power relative to
the suppression and prevention of the ground for its imposition which is manifestly evident
from Section 26, Artide VI of the 1935 Constitution (Section 15 of the 1973 Constitution)
(Rollo, p. 8).
In their amended and/or supplemental petition, petitioners assail the legal ambiguity of the
following statutory provisions:
Article 34. Qualifications of Producer under Investment Priorities Plan.- To be
entitled to registration under the Investment Priorities Plan, an applicant must
satisfy the Board that:
(1) He is a citizen of the Philippines, in case the applicant is a
natural person, or in case of a partnership or any other
association, it is organized under Philippine laws and that at
least sixty per cent (60%) of its capital is owned and
controlled by citizens of the Philippines; or in case of a
corporation or a cooperative, it is organized under Philippine
laws and that at least sixty per cent (60%) of the capital stock
outstanding and entitled to vote is owned and held by
Philippine nationals as defined under Article 14 of this Code,
and at least sixty per cent (60%) of the members of the Board
of Directors are citizens of the Philippines. If it does not
possess the required degree of ownership as mentioned
above by Philippine nationals, the following circumstances
must be satisfactorily established:
(a) x x x
(b) That it obligates itself to attain the status of a Philippine national, as
defined in Article 14, within thirty (30) years from the date of registration or
within such longer period as the Board may require taking into account the
export potential of the project: Provided, That a registered export producer
which exports one hundred per cent (100%) of its total production need not
comply with the requirement; ... (Presidential Decree 1789)
SECTION 1. Notwithstanding the provisions of Article 34 (1) of Presidential
Decree No. 1789, as amended, otherwise known as the Omnibus Investment
Code, the nationality requirement of at least 60% Philippine nationals for nonpioneer industries to be entitled to registration under Book One of the
Omnibus Investment Code shall be suspended for a period of one (1) year;
Provided, that foreign investors fulfill the other requirements provided in the
aforementioned article, particularly Article 34 (1) (b), and such other
conditions provided in Book One of the Omnibus Investment Code; and
Provided, further, that foreign investors win not engage in activities reserved
by the Constitution and existing laws to Philippine nationals and corporations
and other juridical entities owned and controlled by Philippine nationals.
SECTION 2. x x x
SECTION 3. This Decree shall take effect immediately and shall remain in
force for a period of one (1) year from effectivity hereof, provided, that upon
expiration of the one-year period, the suspended provisions of the Omnibus
Investment Code shall resume to be in force and effect without in anyway
affecting the status of investments approved during the suspension of the
provision. (Presidential Decree No. 1892).
The Solicitor General for the respondents filed his separate comments on the petition, on
August 7,1984 (Rollo, p. 57) and on the amended and/or supplemental petition on
September 12,1984 (lbid., p. 98) in compliance with the resolutions dated June 26,1984
(Ibid., p. 24-a) and July 31,1984 (Ibid., p. 53-a). The Court, after considering the pleadings
filed and deliberating on the issues raised in the petition for prohibition with preliminary
injunction with prayer for a restraining order and on the amended and/or supplemental
petition as well as the respondents' separate comments on the petition and on the amended
and/or supplemental petition, gave due course to the petition on August 27, 1985 (Rollo, p.
148). The parties were required to file simultaneous memoranda in the resolution dated
January 16, 1986 (Ibid., p. 152). The Solicitor General filed a manifestation in lieu of
memorandum (Ibid., p. 155), which the Court noted on April 3, 1986 (Ibid., p. 158), while
petitioner's memorandum was filed on December 8,1986 (Ibid., p. 175).
Petitioners raised the following issues:
1. With respect to P.D. 1789, they claim that while it was
issued during martial law, the subject matter of the decree
does not relate to the emergencies of invasion, insurrection,
rebellion or imminent danger thereof, which are the only
situations where the President's martial law legislative power
may be exercised. Conversely, even assuming that it was
issued pursuant to Amendment No. 6 of the Constitution still,
the pre-conditions for the exercise of legislative power by the
President did not exist.
2. With respect to P.D. No. 1892, the pre-conditions for the
exercise of legislative power by the President, under
Amendment No. 6 were similarly agent aside from the fact
that it violates due process and equal protection clauses of
the Constitution and is repugnant to the nationalistic and
conserving spirit of the Constitution.
3. With respect to the Investment Priorities Plan and
Executive Order No. 676 which approves it, they claim that
said plan and order offend Sections 8 and 9 of Article XIV of
the Constitution. (Rollo, pp. 58-59)
On the other extreme, the Solicitor General for the respondents contend that petitioners have
no personality and standing to sue in the absence of an actual controversy concerning the
enforcement of the Presidential Decrees in question. Said laws are valid as they were issued
pursuant to Amendment No. 6 of the 1973 Constitution, the preconditions for their issuance
were present and neither does P.D. 1892 violate the due process and equal protection
clause of the Constitution, nor does it extend the Parity Amendment and the Laurel-Langley
Agreement; the 1981 Investment Priorities Plan and Executive Order No. 676 do not offend
Sections 8 and 9, Article XIV, of the 1973 Constitution (Rollo, pp. 59-79).
The petition is devoid of merit.
It is a well-settled rule that no constitutional question will be heard and resolved unless the
following requisites of a judicial inquiry are present: (1) the existence of an appropriate case;
(2) an interest personal and substantial by the party raising the constitutional question; (3)
the plea that the function be exercised at the earliest opportunity; and (4) the necessity that
the constitutional question be passed upon in order to decide the case (People v. Vera, 65
Phil. 56 [1937]; Dumlao v. COMELEC, 95 SCRA 400 [1980]) .
Petitioners merely complied with the third requisite, that of raising the issue of
constitutionality at the earliest instance in their pleadings. The petition is deficient as to the
other three criteria. Otherwise stated, the power of judicial review is limited to the
determination of actual cases and controversies, which are obviously absent in the instant
case.
Petitioners question the constitutionality of Sections 1 and 3 of P.D. 1892 in relation to P.D.
1789, the 1981 Investment Priorities Plan and Executive Order No. 676 quoted earlier, as
being violative of the due process and equal protection clauses of the 1973 Constitution as
well as Sections 8 and 9 of Article XIV thereof, and seek to prohibit respondent Minister of
Finance from implementing said laws. Yet, not even one of the petitioners has been
adversely affected by the application of those provisions. No actual conflict has been alleged
wherein the petitioner could validly and possibly say that the increase in foreign equity
participation in non-pioneer areas of investment from the period of December 2,1983 to
December 4,1984 had any direct bearing on them, such as considerable rise in
unemployment, real increase in foreign investment, unfair competition with Philippine
nationals, exploitation of the country's natural resources by foreign investors under the
decrees. Petitioners advance an abstract, hypothetical issue which is in effect a petition for
an advisory opinion from this Court.
As a general rule, the constitutionality of a statute will be passed upon only if, and to the
extent that it is directly and necessarily involved in justiciable controversy and is essential to
the protection of the rights of the parties concerned.
More specifically, this Court has ruled:
The power of courts to declare a law unconstitutional arises only when the
interests of litigants require the use of that judicial authority for their
protection against actual interference, a hypothetical threat being insufficient.
(United Public Works vs. Mitchell, U.S. 75; 91 L. Ed., 754).
Bona fide suit. Judicial power is limited to the decision of actual cases and
controversies. The authority to pass on the validity of statutes is incidental to
the decision of such cases where conflicting claims under the Constitution
and under a legislative act assailed as contrary to the Constitution are raised.
It is legitimate only in the last resort, and as necessity in the determination of
real, earnest, and vital controversy between litigants. (Tanada & Fernando,
Constitution of the Philippines, p. 1138; PACU v. Sec. of Education, 97 Phil.
809810 [1955]).
The unchallenged rule is that the person who impugned the validity of a statute must have a
personal and substantial interest in the case, such that he has sustained or will sustain,
direct injury as a result of its enforcement (People v. Vera, supra; Dumlao v.
COMELEC, supra, p. 402).
In the case of petitioners, not one of them has averred to have been adversely affected by
the operation of the statutory provisions they assail as unconstitutional. They have no
personal nor substantial interest at stake. In the absence of any legal conflict, they can claim
no locus standi in seeking judicial redress especially so, as the challenged laws do not relate
to appropriation measures that constitute misappropriation of public funds (Pascual v.
Secretary of Public Works & Communications, 110 Phil. 331 [1960]; Dumlao v.
COMELEC, supra, p. 403). Courts will not pass upon the constitutionality of a law upon the
complaint of one who fails to show that he is injured by its operation (PACU v. Sec. of
Education, supra, p. 810).
The constitutionality of an act of the legislature will not be determined by the courts unless
that question is properly raised and presented in appropriate cases and is necessary to a
determination of the case, i.e., the issue of constitutionality must be the very lis
mota presented (People v. Vera, supra; Dumlao v. Comelec, supra, p. 403).
The 1981 Investment Priorities Plan which is an over-all plan prepared by the Board of
Investments is simply an analysis, synthesis and projection of data collected by the Board
from public and private sources which are measurements and indicators in areas of
production, production capacities and possibilities in areas of economic activities from which
investors might select (Article 28, P.D. 1789), while Executive Order No. 676 if but an
approval of said plan. They are by no means violative of the Constitution nor were they
successfully shown to be inimical to public interest. But more than that, it wig be noted that
P.D. 1892 ipso jure ceased its effectivity on December 4, 1984, while P.D. 1789 has been
expressly repealed by Executive Order No. 226, otherwise known as the Omnibus
Investments Code of 1987.
In fine, it bears reiteration that in interpreting statutes, that which will avoid a finding of
unconstitutionality is to be preferred (Paredes v. Executive Secretary, 128 SCRA 6 [1984]).
PREMISES CONSIDERED, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Gutierrez, Jr., J.,concur in the result.
TATAD V GARCIA
SUPREME COURT
Manila
EN BANC
G.R. No. 114222 April 6, 1995

FRANCISCO S. TATAD, JOHN H. OSMENA and RODOLFO G. BIAZON, petitioners,
vs.
HON. JESUS B. GARCIA, JR., in his capacity as the Secretary of the Department of
Transportation and Communications, and EDSA LRT CORPORATION,
LTD., respondents.
QUIASON, J.:
This is a petition under Rule 65 of the Revised Rules of Court to prohibit respondents from
further implementing and enforcing the "Revised and Restated Agreement to Build, Lease
and Transfer a Light Rail Transit System for EDSA" dated April 22, 1992, and the
"Supplemental Agreement to the 22 April 1992 Revised and Restated Agreement To Build,
Lease and Transfer a Light Rail Transit System for EDSA" dated May 6, 1993.
Petitioners Francisco S. Tatad, John H. Osmena and Rodolfo G. Biazon are members of the
Philippine Senate and are suing in their capacities as Senators and as taxpayers.
Respondent Jesus B. Garcia, Jr. is the incumbent Secretary of the Department of
Transportation and Communications (DOTC), while private respondent EDSA LRT
Corporation, Ltd. is a private corporation organized under the laws of Hongkong.
I
In 1989, DOTC planned to construct a light railway transit line along EDSA, a major
thoroughfare in Metropolitan Manila, which shall traverse the cities of Pasay, Quezon,
Mandaluyong and Makati. The plan, referred to as EDSA Light Rail Transit III (EDSA LRT III),
was intended to provide a mass transit system along EDSA and alleviate the congestion and
growing transportation problem in the metropolis.
On March 3, 1990, a letter of intent was sent by the Eli Levin Enterprises, Inc., represented
by Elijahu Levin to DOTC Secretary Oscar Orbos, proposing to construct the EDSA LRT III
on a Build-Operate-Transfer (BOT) basis.
On March 15, 1990, Secretary Orbos invited Levin to send a technical team to discuss the
project with DOTC.
On July 9, 1990, Republic Act No. 6957 entitled "An Act Authorizing the Financing,
Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector,
and For Other Purposes," was signed by President Corazon C. Aquino. Referred to as the
Build-Operate-Transfer (BOT) Law, it took effect on October 9, 1990.
Republic Act No. 6957 provides for two schemes for the financing, construction and
operation of government projects through private initiative and investment: Build-OperateTransfer (BOT) or Build-Transfer (BT).
In accordance with the provisions of R.A. No. 6957 and to set the EDSA LRT III project
underway, DOTC, on January 22, 1991 and March 14, 1991, issued Department Orders Nos.
91-494 and 91-496, respectively creating the Prequalification Bids and Awards Committee
(PBAC) and the Technical Committee.
After its constitution, the PBAC issued guidelines for the prequalification of contractors for
the financing and implementation of the project The notice, advertising the prequalification of
bidders, was published in three newspapers of general circulation once a week for three
consecutive weeks starting February 21, 1991.
The deadline set for submission of prequalification documents was March 21, 1991, later
extended to April 1, 1991. Five groups responded to the invitation namely, ABB Trazione of
Italy, Hopewell Holdings Ltd. of Hongkong, Mansteel International of Mandaue, Cebu, Mitsui
& Co., Ltd. of Japan, and EDSA LRT Consortium, composed of ten foreign and domestic
corporations: namely, Kaiser Engineers International, Inc., ACER Consultants (Far East) Ltd.
and Freeman Fox, Tradeinvest/CKD Tatra of the Czech and Slovak Federal Republics, TCGI
Engineering All Asia Capital and Leasing Corporation, The Salim Group of Jakarta, E. L.
Enterprises, Inc., A.M. Oreta & Co. Capitol Industrial Construction Group, Inc, and F. F. Cruz
& co., Inc.
On the last day for submission of prequalification documents, the prequalification criteria
proposed by the Technical Committee were adopted by the PBAC. The criteria totalling 100
percent, are as follows: (a) Legal aspects 10 percent; (b) Management/Organizational
capability 30 percent; and (c) Financial capability 30 percent; and (d) Technical
capability 30 percent (Rollo, p. 122).
On April 3, 1991, the Committee, charged under the BOT Law with the formulation of the
Implementation Rules and Regulations thereof, approved the same.
After evaluating the prequalification, bids, the PBAC issued a Resolution on May 9, 1991
declaring that of the five applicants, only the EDSA LRT Consortium "met the requirements of
garnering at least 21 points per criteria [sic], except for Legal Aspects, and obtaining an overall passing mark of at least 82 points" (Rollo, p. 146). The Legal Aspects referred to provided
that the BOT/BT contractor-applicant meet the requirements specified in the Constitution and
other pertinent laws (Rollo, p. 114).
Subsequently, Secretary Orbos was appointed Executive Secretary to the President of the
Philippines and was replaced by Secretary Pete Nicomedes Prado. The latter sent to
President Aquino two letters dated May 31, 1991 and June 14, 1991, respectively
recommending the award of the EDSA LRT III project to the sole complying bidder, the EDSA
LRT Consortium, and requesting for authority to negotiate with the said firm for the contract
pursuant to paragraph 14(b) of the Implementing Rules and Regulations of the BOT Law
(Rollo, pp. 298-302).
In July 1991, Executive Secretary Orbos, acting on instructions of the President, issued a
directive to the DOTC to proceed with the negotiations. On July 16, 1991, the EDSA LRT
Consortium submitted its bid proposal to DOTC.
Finding this proposal to be in compliance with the bid requirements, DOTC and respondent
EDSA LRT Corporation, Ltd., in substitution of the EDSA LRT Consortium, entered into an
"Agreement to Build, Lease and Transfer a Light Rail Transit System for EDSA" under the
terms of the BOT Law (Rollo, pp. 147-177).
Secretary Prado, thereafter, requested presidential approval of the contract.
In a letter dated March 13, 1992, Executive Secretary Franklin Drilon, who replaced
Executive Secretary Orbos, informed Secretary Prado that the President could not grant the
requested approval for the following reasons: (1) that DOTC failed to conduct actual public
bidding in compliance with Section 5 of the BOT Law; (2) that the law authorized public
bidding as the only mode to award BOT projects, and the prequalification proceedings was
not the public bidding contemplated under the law; (3) that Item 14 of the Implementing
Rules and Regulations of the BOT Law which authorized negotiated award of contract in
addition to public bidding was of doubtful legality; and (4) that congressional approval of the
list of priority projects under the BOT or BT Scheme provided in the law had not yet been
granted at the time the contract was awarded (Rollo, pp. 178-179).
In view of the comments of Executive Secretary Drilon, the DOTC and private respondents
re-negotiated the agreement. On April 22, 1992, the parties entered into a "Revised and
Restated Agreement to Build, Lease and Transfer a Light Rail Transit System for EDSA"
(Rollo, pp. 47-78) inasmuch as "the parties [are] cognizant of the fact the DOTC has full
authority to sign the Agreement without need of approval by the President pursuant to the
provisions of Executive Order No. 380 and that certain events [had] supervened since
November 7, 1991 which necessitate[d] the revision of the Agreement" (Rollo, p. 51). On
May 6, 1992, DOTC, represented by Secretary Jesus Garcia vice Secretary Prado, and
private respondent entered into a "Supplemental Agreement to the 22 April 1992 Revised
and Restated Agreement to Build, Lease and Transfer a Light Rail Transit System for EDSA"
so as to "clarify their respective rights and responsibilities" and to submit [the] Supplemental
Agreement to the President, of the Philippines for his approval" (Rollo, pp. 79-80).
Secretary Garcia submitted the two Agreements to President Fidel V. Ramos for his
consideration and approval. In a Memorandum to Secretary Garcia on May 6, 1993,
approved the said Agreements, (Rollo, p. 194).
According to the agreements, the EDSA LRT III will use light rail vehicles from the Czech and
Slovak Federal Republics and will have a maximum carrying capacity of 450,000 passengers
a day, or 150 million a year to be achieved-through 54 such vehicles operating
simultaneously. The EDSA LRT III will run at grade, or street level, on the mid-section of
EDSA for a distance of 17.8 kilometers from F.B. Harrison, Pasay City to North Avenue,
Quezon City. The system will have its own power facility (Revised and Restated Agreement,
Sec. 2.3 (ii); Rollo p. 55). It will also have thirteen (13) passenger stations and one depot in
16-hectare government property at North Avenue (Supplemental Agreement, Sec. 11; Rollo,
pp. 91-92).
Private respondents shall undertake and finance the entire project required for a complete
operational light rail transit system (Revised and Restated Agreement, Sec. 4.1; Rollo, p.
58). Target completion date is 1,080 days or approximately three years from the
implementation date of the contract inclusive of mobilization, site works, initial and final
testing of the system (Supplemental Agreement, Sec. 5; Rollo, p. 83). Upon full or partial
completion and viability thereof, private respondent shall deliver the use and possession of
the completed portion to DOTC which shall operate the same (Supplemental Agreement,
Sec. 5; Revised and Restated Agreement, Sec. 5.1; Rollo, pp. 61-62, 84). DOTC shall pay
private respondent rentals on a monthly basis through an Irrevocable Letter of Credit. The
rentals shall be determined by an independent and internationally accredited inspection firm
to be appointed by the parties (Supplemental Agreement, Sec. 6; Rollo, pp. 85-86) As
agreed upon, private respondent's capital shall be recovered from the rentals to be paid by
the DOTC which, in turn, shall come from the earnings of the EDSA LRT III (Revised and
Restated Agreement, Sec. 1, p. 5; Rollo, p. 54). After 25 years and DOTC shall have
completed payment of the rentals, ownership of the project shall be transferred to the latter
for a consideration of only U.S. $1.00 (Revised and Restated Agreement, Sec. 11.1; Rollo, p.
67).
On May 5, 1994, R.A. No. 7718, an "Act Amending Certain Sections of Republic Act No.
6957, Entitled "An Act Authorizing the Financing, Construction, Operation and Maintenance
of Infrastructure Projects by the Private Sector, and for Other Purposes" was signed into law
by the President. The law was published in two newspapers of general circulation on May
12, 1994, and took effect 15 days thereafter or on May 28, 1994. The law expressly
recognizes BLT scheme and allows direct negotiation of BLT contracts.
II
In their petition, petitioners argued that:
(1) THE AGREEMENT OF APRIL 22, 1992, AS AMENDED BY THE
SUPPLEMENTAL AGREEMENT OF MAY 6, 1993, INSOFAR AS IT GRANTS
EDSA LRT CORPORATION, LTD., A FOREIGN CORPORATION, THE
OWNERSHIP OF EDSA LRT III, A PUBLIC UTILITY, VIOLATES THE
CONSTITUTION AND, HENCE, IS UNCONSTITUTIONAL;
(2) THE BUILD-LEASE-TRANSFER SCHEME PROVIDED IN THE
AGREEMENTS IS NOT DEFINED NOR RECOGNIZED IN R.A. NO. 6957
OR ITS IMPLEMENTING RULES AND REGULATIONS AND, HENCE, IS
ILLEGAL;
(3) THE AWARD OF THE CONTRACT ON A NEGOTIATED BASIS
VIOLATES R; A. NO. 6957 AND, HENCE, IS UNLAWFUL;
(4) THE AWARD OF THE CONTRACT IN FAVOR OF RESPONDENT EDSA
LRT CORPORATION, LTD. VIOLATES THE REQUIREMENTS PROVIDED
IN THE IMPLEMENTING RULES AND REGULATIONS OF THE BOT LAW
AND, HENCE, IS ILLEGAL;
(5) THE AGREEMENTS VIOLATE EXECUTIVE ORDER NO 380 FOR
THEIR FAILURE TO BEAR PRESIDENTIAL APPROVAL AND, HENCE, ARE
ILLEGAL AND INEFFECTIVE; AND
(6) THE AGREEMENTS ARE GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT (Rollo, pp. 15-16).
Secretary Garcia and private respondent filed their comments separately and claimed that:
(1) Petitioners are not the real parties-in-interest and have no legal standing to institute the
present petition;
(2) The writ of prohibition is not the proper remedy and the petition requires ascertainment of
facts;
(3) The scheme adopted in the Agreements is actually a build-transfer scheme allowed by
the BOT Law;
(4) The nationality requirement for public utilities mandated by the Constitution does not
apply to private respondent;
(5) The Agreements executed by and between respondents have been approved by
President Ramos and are not disadvantageous to the government;
(6) The award of the contract to private respondent through negotiation and not public
bidding is allowed by the BOT Law; and
(7) Granting that the BOT Law requires public bidding, this has been amended by R.A No.
7718 passed by the Legislature On May 12, 1994, which provides for direct negotiation as a
mode of award of infrastructure projects.
III
Respondents claimed that petitioners had no legal standing to initiate the instant action.
Petitioners, however, countered that the action was filed by them in their capacity as
Senators and as taxpayers.
The prevailing doctrines in taxpayer's suits are to allow taxpayers to question contracts
entered into by the national government or government-owned or controlled corporations
allegedly in contravention of the law (Kilosbayan, Inc. v. Guingona, 232 SCRA 110 [1994])
and to disallow the same when only municipal contracts are involved (Bugnay Construction
and Development Corporation v. Laron, 176 SCRA. 240 [1989]).
For as long as the ruling in Kilosbayan on locus standi is not reversed, we have no choice
but to follow it and uphold the legal standing of petitioners as taxpayers to institute the
present action.
IV
In the main, petitioners asserted that the Revised and Restated Agreement of April 22, 1992
and the Supplemental Agreement of May 6, 1993 are unconstitutional and invalid for the
following reasons:
(1) the EDSA LRT III is a public utility, and the ownership and operation
thereof is limited by the Constitution to Filipino citizens and domestic
corporations, not foreign corporations like private respondent;
(2) the Build-Lease-Transfer (BLT) scheme provided in the agreements is not

the BOT or BT Scheme under the law;
(3) the contract to construct the EDSA LRT III was awarded to private
respondent not through public bidding which is the only mode of awarding
infrastructure projects under the BOT law; and
(4) the agreements are grossly disadvantageous to the government.
1. Private respondent EDSA LRT Corporation, Ltd. to whom the contract to construct the
EDSA LRT III was awarded by public respondent, is admittedly a foreign corporation "duly
incorporated and existing under the laws of Hongkong" (Rollo, pp. 50, 79). There is also no
dispute that once the EDSA LRT III is constructed, private respondent, as lessor, will turn it
over to DOTC, as lessee, for the latter to operate the system and pay rentals for said use.
The question posed by petitioners is:
Can respondent EDSA LRT Corporation, Ltd., a foreign corporation own
EDSA LRT III; a public utility? (Rollo, p. 17).
The phrasing of the question is erroneous; it is loaded. What private respondent owns are
the rail tracks, rolling stocks like the coaches, rail stations, terminals and the power plant, not
a public utility. While a franchise is needed to operate these facilities to serve the public, they
do not by themselves constitute a public utility. What constitutes a public utility is not their
ownership but their use to serve the public (Iloilo Ice & Cold Storage Co. v. Public Service
Board, 44 Phil. 551, 557 558 [1923]).
The Constitution, in no uncertain terms, requires a franchise for the operation of a public
utility. However, it does not require a franchise before one can own the facilities needed to
operate a public utility so long as it does not operate them to serve the public.
Section 11 of Article XII of the Constitution provides:
No franchise, certificate or any other form of authorization for the operation of
a public utility shall be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the Philippines at
least sixty per centum of whose capital is owned by such citizens, nor shall
such franchise, certificate or authorization be exclusive character or for a
longer period than fifty years . . . (Emphasis supplied).
In law, there is a clear distinction between the "operation" of a public utility and the ownership
of the facilities and equipment used to serve the public.
Ownership is defined as a relation in law by virtue of which a thing pertaining to one person
is completely subjected to his will in everything not prohibited by law or the concurrence with
the rights of another (Tolentino, II Commentaries and Jurisprudence on the Civil Code of the
Philippines 45 [1992]).
The exercise of the rights encompassed in ownership is limited by law so that a property
cannot be operated and used to serve the public as a public utility unless the operator has a
franchise. The operation of a rail system as a public utility includes the transportation of
passengers from one point to another point, their loading and unloading at designated places
and the movement of the trains at pre-scheduled times (cf. Arizona Eastern R.R. Co. v. J.A..
Matthews, 20 Ariz 282, 180 P.159, 7 A.L.R. 1149 [1919] ;United States Fire Ins. Co. v.
Northern P.R. Co., 30 Wash 2d. 722, 193 P. 2d 868, 2 A.L.R. 2d 1065 [1948]).
The right to operate a public utility may exist independently and separately from the
ownership of the facilities thereof. One can own said facilities without operating them as a
public utility, or conversely, one may operate a public utility without owning the facilities used
to serve the public. The devotion of property to serve the public may be done by the owner or
by the person in control thereof who may not necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the ownership of the facilities
used to serve the public can be very well appreciated when we consider the transportation
industry. Enfranchised airline and shipping companies may lease their aircraft and vessels
instead of owning them themselves.
While private respondent is the owner of the facilities necessary to operate the EDSA. LRT
III, it admits that it is not enfranchised to operate a public utility (Revised and Restated
Agreement, Sec. 3.2; Rollo, p. 57). In view of this incapacity, private respondent and DOTC
agreed that on completion date, private respondent will immediately deliver possession of
the LRT system by way of lease for 25 years, during which period DOTC shall operate the
same as a common carrier and private respondent shall provide technical maintenance and
repair services to DOTC (Revised and Restated Agreement, Secs. 3.2, 5.1 and 5.2; Rollo,
pp. 57-58, 61-62). Technical maintenance consists of providing (1) repair and maintenance
facilities for the depot and rail lines, services for routine clearing and security; and (2)
producing and distributing maintenance manuals and drawings for the entire system
(Revised and Restated Agreement, Annex F).
Private respondent shall also train DOTC personnel for familiarization with the operation,
use, maintenance and repair of the rolling stock, power plant, substations, electrical,
signaling, communications and all other equipment as supplied in the agreement (Revised
and Restated Agreement, Sec. 10; Rollo, pp. 66-67). Training consists of theoretical and live
training of DOTC operational personnel which includes actual driving of light rail vehicles
under simulated operating conditions, control of operations, dealing with emergencies,
collection, counting and securing cash from the fare collection system (Revised and
Restated Agreement, Annex E, Secs. 2-3). Personnel of DOTC will work under the direction
and control of private respondent only during training (Revised and Restated Agreement,
Annex E, Sec. 3.1). The training objectives, however, shall be such that upon completion of
the EDSA LRT III and upon opening of normal revenue operation, DOTC shall have in their
employ personnel capable of undertaking training of all new and replacement personnel
(Revised and Restated Agreement, Annex E Sec. 5.1). In other words, by the end of the
three-year construction period and upon commencement of normal revenue operation,
DOTC shall be able to operate the EDSA LRT III on its own and train all new personnel by
itself.
Fees for private respondent' s services shall be included in the rent, which likewise includes
the project cost, cost of replacement of plant equipment and spare parts, investment and
financing cost, plus a reasonable rate of return thereon (Revised and Restated Agreement,
Sec. 1; Rollo, p. 54).
Since DOTC shall operate the EDSA LRT III, it shall assume all the obligations and liabilities
of a common carrier. For this purpose, DOTC shall indemnify and hold harmless private
respondent from any losses, damages, injuries or death which may be claimed in the
operation or implementation of the system, except losses, damages, injury or death due to
defects in the EDSA LRT III on account of the defective condition of equipment or facilities or
the defective maintenance of such equipment facilities (Revised and Restated Agreement,
Secs. 12.1 and 12.2; Rollo, p. 68).
In sum, private respondent will not run the light rail vehicles and collect fees from the riding
public. It will have no dealings with the public and the public will have no right to demand any
services from it.
It is well to point out that the role of private respondent as lessor during the lease period
must be distinguished from the role of the Philippine Gaming Management Corporation
(PGMC) in the case of Kilosbayan Inc. v. Guingona, 232 SCRA 110 (1994). Therein, the
Contract of Lease between PGMC and the Philippine Charity Sweepstakes Office (PCSO)
was actually a collaboration or joint venture agreement prescribed under the charter of the
PCSO. In the Contract of Lease; PGMC, the lessor obligated itself to build, at its own
expense, all the facilities necessary to operate and maintain a nationwide on-line lottery
system from whom PCSO was to lease the facilities and operate the same. Upon due
examination of the contract, the Court found that PGMC's participation was not confined to
the construction and setting up of the on-line lottery system. It spilled over to the actual
operation thereof, becoming indispensable to the pursuit, conduct, administration and control
of the highly technical and sophisticated lottery system. In effect, the PCSO leased out its
franchise to PGMC which actually operated and managed the same.
Indeed, a mere owner and lessor of the facilities used by a public utility is not a public utility
(Providence and W.R. Co. v. United States, 46 F. 2d 149, 152 [1930]; Chippewa Power Co. v.
Railroad Commission of Wisconsin, 205 N.W. 900, 903, 188 Wis. 246 [1925]; Ellis v.
Interstate Commerce Commission, Ill 35 S. Ct. 645, 646, 237 U.S. 434, 59 L. Ed. 1036
[1914]). Neither are owners of tank, refrigerator, wine, poultry and beer cars who supply cars
under contract to railroad companies considered as public utilities (Crystal Car Line v. State
Tax Commission, 174 p. 2d 984, 987 [1946]).
Even the mere formation of a public utility corporation does not ipso facto characterize the
corporation as one operating a public utility. The moment for determining the requisite
Filipino nationality is when the entity applies for a franchise, certificate or any other form of
authorization for that purpose (People v. Quasha, 93 Phil. 333 [1953]).
2. Petitioners further assert that the BLT scheme under the Agreements in question is not
recognized in the BOT Law and its Implementing Rules and Regulations.
Section 2 of the BOT Law defines the BOT and BT schemes as follows:
(a) Build-operate-and-transfer scheme A contractual arrangement whereby
the contractor undertakes the construction including financing, of a given
infrastructure facility, and the operation and maintenance thereof. The
contractor operates the facility over a fixed term during which it is allowed to
charge facility users appropriate tolls, fees, rentals and charges sufficient to
enable the contractor to recover its operating and maintenance expenses
and its investment in the project plus a reasonable rate of return thereon. The
contractor transfers the facility to the government agency or local government
unit concerned at the end of the fixed term which shall not exceed fifty (50)
years. For the construction stage, the contractor may obtain financing from
foreign and/or domestic sources and/or engage the services of a foreign

and/or Filipino constructor [sic]: Provided, That the ownership structure of the
contractor of an infrastructure facility whose operation requires a public utility
franchise must be in accordance with the Constitution: Provided, however,
That in the case of corporate investors in the build-operate-and-transfer
corporation, the citizenship of each stockholder in the corporate investors
shall be the basis for the computation of Filipino equity in the said
corporation: Provided, further, That, in the case of foreign constructors [sic],
Filipino labor shall be employed or hired in the different phases of the
construction where Filipino skills are available: Provided, furthermore, that
the financing of a foreign or foreign-controlled contractor from Philippine
government financing institutions shall not exceed twenty percent (20%) of
the total cost of the infrastructure facility or project: Provided, finally, That
financing from foreign sources shall not require a guarantee by the
Government or by government-owned or controlled corporations. The buildoperate-and-transfer scheme shall include a supply-and-operate situation
which is a contractual agreement whereby the supplier of equipment and
machinery for a given infrastructure facility, if the interest of the Government
so requires, operates the facility providing in the process technology transfer
and training to Filipino nationals.
(b) Build-and-transfer scheme "A contractual arrangement whereby the
contractor undertakes the construction including financing, of a given
infrastructure facility, and its turnover after completion to the government
agency or local government unit concerned which shall pay the contractor its
total investment expended on the project, plus a reasonable rate of return
thereon. This arrangement may be employed in the construction of any
infrastructure project including critical facilities which for security or strategic
reasons, must be operated directly by the government (Emphasis supplied).
The BOT scheme is expressly defined as one where the contractor undertakes the
construction and financing in infrastructure facility, and operates and maintains the same.
The contractor operates the facility for a fixed period during which it may recover its
expenses and investment in the project plus a reasonable rate of return thereon. After the
expiration of the agreed term, the contractor transfers the ownership and operation of the
project to the government.
In the BT scheme, the contractor undertakes the construction and financing of the facility, but
after completion, the ownership and operation thereof are turned over to the government.
The government, in turn, shall pay the contractor its total investment on the project in
addition to a reasonable rate of return. If payment is to be effected through amortization
payments by the government infrastructure agency or local government unit concerned, this
shall be made in accordance with a scheme proposed in the bid and incorporated in the
contract (R.A. No. 6957, Sec. 6).
Emphasis must be made that under the BOT scheme, the owner of the infrastructure facility
must comply with the citizenship requirement of the Constitution on the operation of a public
utility. No such a requirement is imposed in the BT scheme.
There is no mention in the BOT Law that the BOT and BT schemes bar any other
arrangement for the payment by the government of the project cost. The law must not be
read in such a way as to rule out or unduly restrict any variation within the context of the two
schemes. Indeed, no statute can be enacted to anticipate and provide all the fine points and
details for the multifarious and complex situations that may be encountered in enforcing the
law (Director of Forestry v. Munoz, 23 SCRA 1183 [1968]; People v. Exconde, 101 Phil. 1125
[1957]; United States v. Tupasi Molina, 29 Phil. 119 [1914]).
The BLT scheme in the challenged agreements is but a variation of the BT scheme under the
law.
As a matter of fact, the burden on the government in raising funds to pay for the project is
made lighter by allowing it to amortize payments out of the income from the operation of the
LRT System.
In form and substance, the challenged agreements provide that rentals are to be paid on a
monthly basis according to a schedule of rates through and under the terms of a confirmed
Irrevocable Revolving Letter of Credit (Supplemental Agreement, Sec. 6; Rollo, p. 85). At the
end of 25 years and when full payment shall have been made to and received by private
respondent, it shall transfer to DOTC, free from any lien or encumbrances, all its title to,
rights and interest in, the project for only U.S. $1.00 (Revised and Restated Agreement, Sec.
11.1; Supplemental Agreement, Sec; 7; Rollo, pp. 67, .87).
A lease is a contract where one of the parties binds himself to give to another the enjoyment
or use of a thing for a certain price and for a period which may be definite or indefinite but
not longer than 99 years (Civil Code of the Philippines, Art. 1643). There is no transfer of
ownership at the end of the lease period. But if the parties stipulate that title to the leased
premises shall be transferred to the lessee at the end of the lease period upon the payment
of an agreed sum, the lease becomes a lease-purchase agreement.
Furthermore, it is of no significance that the rents shall be paid in United States currency, not
Philippine pesos. The EDSA LRT III Project is a high priority project certified by Congress
and the National Economic and Development Authority as falling under the Investment
Priorities Plan of Government (Rollo, pp. 310-311). It is, therefore, outside the application of
the Uniform Currency Act (R.A. No. 529), which reads as follows:
Sec. 1. Every provision contained in, or made with respect to, any
domestic obligation to wit, any obligation contracted in the Philippines which
provisions purports to give the obligee the right to require payment in gold or
in a particular kind of coin or currency other than Philippine currency or in an
amount of money of the Philippines measured thereby, be as it is hereby
declared against public policy, and null, void, and of no effect, and no such
provision shall be contained in, or made with respect to, any obligation
hereafter incurred. The above prohibition shall not apply to (a) . . .; (b)
transactions affecting high-priority economic projects for agricultural,
industrial and power development as may be determined by
the National Economic Council which are financed by or through foreign
funds; . . . .
3. The fact that the contract for the construction of the EDSA LRT III was awarded through
negotiation and before congressional approval on January 22 and 23, 1992 of the List of
National Projects to be undertaken by the private sector pursuant to the BOT Law (Rollo, pp.
309-312) does not suffice to invalidate the award.
Subsequent congressional approval of the list including "rail-based projects packaged with
commercial development opportunities" (Rollo, p. 310) under which the EDSA LRT III
projects falls, amounts to a ratification of the prior award of the EDSA LRT III contract under
the BOT Law.
Petitioners insist that the prequalifications process which led to the negotiated award of the
contract appears to have been rigged from the very beginning to do away with the usual
open international public bidding where qualified internationally known applicants could fairly
participate.
The records show that only one applicant passed the prequalification process. Since only
one was left, to conduct a public bidding in accordance with Section 5 of the BOT Law for
that lone participant will be an absurb and pointless exercise (cf. Deloso v. Sandiganbayan,
217 SCRA 49, 61 [1993]).
Contrary to the comments of the Executive Secretary Drilon, Section 5 of the BOT Law in
relation to Presidential Decree No. 1594 allows the negotiated award of government
infrastructure projects.
Presidential Decree No. 1594, "Prescribing Policies, Guidelines, Rules and Regulations for
Government Infrastructure Contracts," allows the negotiated award of government projects in
exceptional cases. Sections 4 of the said law reads as follows:
Bidding. Construction projects shall generally be undertaken by contract
after competitive public bidding. Projects may be undertaken by
administration or force account or by negotiated contract only in exceptional
cases where time is of the essence, or where there is lack of qualified
bidders or contractors, or where there is conclusive evidence that greater
economy and efficiency would be achieved through this arrangement, and in
accordance with provision of laws and acts on the matter, subject to the
approval of the Minister of Public Works and Transportation and
Communications, the Minister of Public Highways, or the Minister of Energy,
as the case may be, if the project cost is less than P1 Million, and the
President of the Philippines, upon recommendation of the Minister, if the
project cost is P1 Million or more (Emphasis supplied).
xxx xxx xxx
Indeed, where there is a lack of qualified bidders or contractors, the award of government
infrastructure contracts may he made by negotiation. Presidential Decree No. 1594 is the
general law on government infrastructure contracts while the BOT Law governs particular
arrangements or schemes aimed at encouraging private sector participation in government
infrastructure projects. The two laws are not inconsistent with each other but are in pari
materia and should be read together accordingly.
In the instant case, if the prequalification process was actually tainted by foul play, one
wonders why none of the competing firms ever brought the matter before the PBAC, or
intervened in this case before us (cf. Malayan Integrated Industries Corp. v. Court of
Appeals, 213 SCRA 640 [1992]; Bureau Veritas v. Office of the President, 205 SCRA 705
[1992]).
The challenged agreements have been approved by President Ramos himself. Although
then Executive Secretary Drilon may have disapproved the "Agreement to Build, Lease and
Transfer a Light Rail Transit System for EDSA," there is nothing in our laws that prohibits
parties to a contract from renegotiating and modifying in good faith the terms and conditions
thereof so as to meet legal, statutory and constitutional requirements. Under the
circumstances, to require the parties to go back to step one of the prequalification process
would just be an idle ceremony. Useless bureaucratic "red tape" should be eschewed
because it discourages private sector participation, the "main engine" for national growth and
development (R.A. No. 6957, Sec. 1), and renders the BOT Law nugatory.
Republic Act No. 7718 recognizes and defines a BLT scheme in Section 2 thereof as:
(e) Build-lease-and-transfer A contractual arrangement whereby a project
proponent is authorized to finance and construct an infrastructure or
development facility and upon its completion turns it over to the government
agency or local government unit concerned on a lease arrangement for a
fixed period after which ownership of the facility is automatically transferred
to the government unit concerned.
Section 5-A of the law, which expressly allows direct negotiation of contracts, provides:
Direct Negotiation of Contracts. Direct negotiation shall be resorted to
when there is only one complying bidder left as defined hereunder.
(a) If, after advertisement, only one contractor applies for prequalification and
it meets the prequalification requirements, after which it is required to submit
a bid proposal which is subsequently found by the agency/local government
unit (LGU) to be complying.
(b) If, after advertisement, more than one contractor applied for
prequalification but only one meets the prequalification requirements, after
which it submits bid/proposal which is found by the agency/local government
unit (LGU) to be complying.
(c) If, after prequalification of more than one contractor only one submits a
bid which is found by the agency/LGU to be complying.
(d) If, after prequalification, more than one contractor submit bids but only
one is found by the agency/LGU to be complying. Provided, That, any of the
disqualified prospective bidder [sic] may appeal the decision of the
implementing agency, agency/LGUs prequalification bids and awards
committee within fifteen (15) working days to the head of the agency, in case
of national projects or to the Department of the Interior and Local
Government, in case of local projects from the date the disqualification was
made known to the disqualified bidder: Provided, furthermore, That the
implementing agency/LGUs concerned should act on the appeal within fortyfive (45) working days from receipt thereof.
Petitioners' claim that the BLT scheme and direct negotiation of contracts are not
contemplated by the BOT Law has now been rendered moot and academic by R.A. No.
7718. Section 3 of this law authorizes all government infrastructure agencies, governmentowned and controlled corporations and local government units to enter into contract with any
duly prequalified proponent for the financing, construction, operation and maintenance of any
financially viable infrastructure or development facility through a BOT, BT, BLT, BOO (Buildown-and-operate), CAO (Contract-add-operate), DOT (Develop-operate-and-transfer), ROT
(Rehabilitate-operate-and-transfer), and ROO (Rehabilitate-own-operate) (R.A. No. 7718,
Sec. 2 [b-j]).
From the law itself, once and applicant has prequalified, it can enter into any of the schemes
enumerated in Section 2 thereof, including a BLT arrangement, enumerated and defined
therein (Sec. 3).
Republic Act No. 7718 is a curative statute. It is intended to provide financial incentives and
"a climate of minimum government regulations and procedures and specific government
undertakings in support of the private sector" (Sec. 1). A curative statute makes valid that
which before enactment of the statute was invalid. Thus, whatever doubts and alleged
procedural lapses private respondent and DOTC may have engendered and committed in
entering into the questioned contracts, these have now been cured by R.A. No. 7718
(cf. Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980]; Santos V.
Duata, 14 SCRA 1041 [1965]; Adong V. Cheong Seng Gee, 43 Phil. 43 [1922].
4. Lastly, petitioners claim that the agreements are grossly disadvantageous to the
government because the rental rates are excessive and private respondent's development
rights over the 13 stations and the depot will rob DOTC of the best terms during the most
productive years of the project.
It must be noted that as part of the EDSA LRT III project, private respondent has been
granted, for a period of 25 years, exclusive rights over the depot and the air space above the
stations for development into commercial premises for lease, sublease, transfer, or
advertising (Supplemental Agreement, Sec. 11; Rollo, pp. 91-92). For and in consideration of
these development rights, private respondent shall pay DOTC in Philippine currency
guaranteed revenues generated therefrom in the amounts set forth in the Supplemental
Agreement (Sec. 11; Rollo, p. 93). In the event that DOTC shall be unable to collect the
guaranteed revenues, DOTC shall be allowed to deduct any shortfalls from the monthly rent
due private respondent for the construction of the EDSA LRT III (Supplemental Agreement,
Sec. 11; Rollo, pp. 93-94). All rights, titles, interests and income over all contracts on the
commercial spaces shall revert to DOTC upon expiration of the 25-year period.
(Supplemental Agreement, Sec. 11; Rollo, pp. 91-92).
The terms of the agreements were arrived at after a painstaking study by DOTC. The
determination by the proper administrative agencies and officials who have acquired
expertise, specialized skills and knowledge in the performance of their functions should be
accorded respect absent any showing of grave abuse of discretion (Felipe Ysmael, Jr. & Co.
v. Deputy Executive Secretary, 190 SCRA 673 [1990]; Board of Medical Education v. Alfonso,
176 SCRA 304 [1989]).
Government officials are presumed to perform their functions with regularity and strong
evidence is necessary to rebut this presumption. Petitioners have not presented evidence on
the reasonable rentals to be paid by the parties to each other. The matter of valuation is an
esoteric field which is better left to the experts and which this Court is not eager to
undertake.
That the grantee of a government contract will profit therefrom and to that extent the
government is deprived of the profits if it engages in the business itself, is not worthy of
being raised as an issue. In all cases where a party enters into a contract with the
government, he does so, not out of charity and not to lose money, but to gain pecuniarily.
5. Definitely, the agreements in question have been entered into by DOTC in the exercise of
its governmental function. DOTC is the primary policy, planning, programming, regulating
and administrative entity of the Executive branch of government in the promotion,
development and regulation of dependable and coordinated networks of transportation and
communications systems as well as in the fast, safe, efficient and reliable postal,
transportation and communications services (Administrative Code of 1987, Book IV, Title XV,
Sec. 2). It is the Executive department, DOTC in particular that has the power, authority and
technical expertise determine whether or not a specific transportation or communication
project is necessary, viable and beneficial to the people. The discretion to award a contract is
vested in the government agencies entrusted with that function (Bureau Veritas v. Office of
the President, 205 SCRA 705 [1992]).
WHEREFORE, the petition is DISMISSED.
SO ORDERED
Bellosillo and Kapunan, JJ., concur.
Padilla and Regalado, JJ., concurs in the result.
Romero, J., is on leave.
Separate Opinions
MENDOZA, J., concurring:

I concur in all but Part III of the majority opinion. Because I hold that petitioners do not have
standing to sue, I join to dismiss the petition in this case. I write only to set forth what I
understand the grounds for our decisions on the doctrine of standing are and, why in
accordance with these decisions, petitioners do not have the rights to sue, whether as
legislators, taxpayers or citizens. As members of Congress, because they allege no
infringement of prerogative as legislators. 1 As taxpayers because petitioners allege neither an
unconstitutional exercise of the taxing or spending powers of Congress (Art VI, 24-25 and
29) 2 nor an illegal disbursement of public money. 3 As this Court pointed out in Bugnay Const. and
Dev. Corp. v. Laron, 4 a party suing as taxpayer "must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a
direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient
that he has merely a general interest common to all members of the public." In that case, it was
held that a contract, whereby a local government leased property to a private party with the
understanding that the latter would build a market building and at the end of the lease would
transfer the building of the lessor, did not involve a disbursement of public funds so as to give
taxpayer standing to question the legality of the contract. I see no substantial difference, as far as
the standing is of taxpayers to question public contracts is concerned, between the contract there
and the build-lease-transfer (BLT) contract being questioned by petitioners in this case.
Nor do petitioners have standing to bring this suit as citizens. In the cases 5 in which citizens
were authorized to sue, this Court found standing because it thought the constitutional claims
pressed for decision to be of "transcendental importance," as in fact it subsequently granted relief
to petitioners by invalidating the challenged statutes or governmental actions. Thus in the Lotto
case 6 relied upon by the majority for upholding petitioners standing, this Court took into account
the "paramount public interest" involved which "immeasurably affect[ed] the social, economic, and
moral well-being of the people . . . and the counter-productive and retrogressive effects of the
envisioned on-line lottery system:" 7 Accordingly, the Court invalidated the contract for the
operation of lottery.
But in the case at bar, the Court precisely finds the opposite by finding petitioners'
substantive contentions to be without merit To the extent therefore that a party's standing is
affected by a determination of the substantive merit of the case or a preliminary estimate
thereof, petitioners in the case at bar must be held to be without standing. This is in line with
our ruling in Lawyers League for a Better Philippines v. Aquino 8 and In re Bermudez 9 where we
dismissed citizens' actions on the ground that petitioners had no personality to sue and their petitions did not state a cause of
action. The holding that petitioners did not have standing followed from the finding that they did not have a cause of action.
In order that citizens' actions may be allowed a party must show that he personally has
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. 10 As the U.S. Supreme Court has held:
Typically, . . . the standing inquiry requires careful judicial examination of a
complaint's allegation to ascertain whether the particular plaintiff is entitled to
an adjudication of the particular claims asserted. Is the injury too abstract, or
otherwise not appropriate, to be considered judicially cognizable? Is the line
of causation between the illegal conduct and injury too attenuated? Is the
prospect of obtaining relief from the injury as a result of a favorable ruling too
speculative? These questions and any others relevant to the standing inquiry
must be answered by reference to the Art III notion that federal courts may
exercise power only "in the last resort, and as a necessity, Chicago & Grand
Trunk R. Co. v. Wellman, 143 US 339, 345, 36 L Ed 176,12 S Ct 400 (1892),
and only when adjudication is "consistent with a system of separated powers
and [the dispute is one] traditionally thought to be capable of resolution
through the judicial process," Flast v Cohen, 392 US 83, 97, 20 L Ed 2d 947,
88 S Ct 1942 (1968). See Valley Forge, 454 US, at 472-473, 70 L Ed 2d 700,
102 S Ct 752. 11
Today's holding that a citizen, qua citizen, has standing to question a government contract
unduly expands the scope of public actions and sweeps away the case and controversy
requirement so carefully embodied in Art. VIII, 5 in defining the jurisdiction of this Court. The
result is to convert the Court into an office of ombudsman for the ventilation of generalized
grievances. Consistent with the view that this case has no merit I submit with respect that
petitioners, as representatives of the public interest, have no standing.
Narvasa, C.J., Bidin, Melo, Puno, Vitug and Francisco, JJ., concur.
DAVIDE, JR., J., dissenting:

After wading through the record of the vicissitudes of the challenged contract and evaluating
the issues raised and the arguments adduced by the parties, I find myself unable to joint
majority in the well-written ponencia of Mr. Justice Camilo P. Quiason.
I most respectfully submit that the challenged contract is void for at least two reasons: (a) it is
an-ultra-vires act of the Department of Transportation and Communications (DOTC) since
under R.A. 6957 the DOTC has no authority to enter into a Build-Lease-and-Transfer (BLT)
contract; and (b) even assuming arguendo that it has, the contract was entered into without
complying with the mandatory requirement of public bidding.
I
Respondents admit that the assailed contract was entered into under R.A. 6957. This law,
fittingly entitled "An Act Authorizing the Financing, Construction, Operation and Maintenance
of Infrastructure Projects by the Private Sector, and For Other Purposes," recognizes only
two (2) kinds of contractual arrangements between the private sector and government
infrastructure agencies: (a) the Build-Operate-and-Transfer (BOT) scheme and (b) the Buildand-Transfer (BT) scheme. This conclusion finds support in Section 2 thereof which defines
only the BOT and BT schemes, in Section 3 which explicitly provides for said schemes thus:
Sec. 3 Private Initiative in Infrastructure. All government infrastructure
agencies, including government-owned and controlled corporations and local
government units, are hereby authorized to enter into contract with any duly
prequalified private contractor for the financing, construction, operation and
maintenance of any financially viable infrastructure facilities through the
build-operate-and transfer or build-and-transfer scheme, subject to the terms
and conditions hereinafter set forth; (Emphasis supplied).
and in Section 5 which requires public bidding of projects under both schemes.
All prior acts and negotiations leading to the perfection of the challenged contract were
clearly intended and pursued for such schemes.
A Build-Lease-and-Transfer (BLT) scheme is not authorized under the said law, and none of
the aforesaid prior acts and negotiations were designed for such unauthorized scheme.
Hence, the DOTC is without any power or authority to enter into the BLT contract in question.
The majority opinion maintains, however, that since "[t]here is no mention in the BOT Law
that the BOT and the BT schemes bar any other arrangement for the payment by the
government of the project cost," then "[t]he law must not be read in such a way as to rule
outer unduly restrict any variation within the context of the two schemes." This interpretation
would be correct if the law itself provides a room for flexibility. We find no such provisions in
R.A. No. 6957 if it intended to include a BLT scheme, then it should have so stated, for
contracts of lease are not unknown in our jurisdiction, and Congress has enacted several
laws relating to leases. That the BLT scheme was never intended as a permissible variation
"within the context" of the BOT and BT schemes is conclusively established by the passage
of R.A. No. 7718 which amends:
a. Section 2 by adding to the original BOT and BT schemes the following

schemes:
(1)
Build-own-and-operate (BOO)
(2)
Build-Lease-and-transfer (BLT)
(3)
Build-transfer-and-operate (BTO)
(4)
Contract-add-and-operate (CAO)
(5)
Develop-operate-and-transfer (DOT)
(6)
Rehabilitate-operate-and-transfer (ROT)
(7)
Rehabilitate-own-and-operate (ROO).
b) Section 3 of R.A. No. 6957 by deleting therefrom the phrase "through the
build-operate-and-transfer or build-and-transfer scheme."
II
Public bidding is mandatory in R.A. No. 6957. Section 5 thereof reads as follows:
Sec. 5 Public Bidding of Projects. Upon approval of the projects
mentioned in Section 4 of this Act, the concerned head of the infrastructure
agency or local government unit shall forthwith cause to be published, once
every week for three (3) consecutive weeks, in at least two (2) newspapers of
general circulation and in at least one (1) local newspaper which is circulated
in the region, province, city or municipality in which the project is to be
constructed a notice inviting all duly prequalified infrastructure contractors to
participate in the public bidding for the projects so approved. In the case of a
build-operate-and-transfer arrangement, the contract shall be awarded to the
lowest complying bidder based on the present value of its proposed tolls,
fees, rentals, and charges over a fixed term for the facility to be constructed,
operated, and maintained according to the prescribed minimum design and
performance standards plans, and specifications. For this purpose, the
winning contractor shall be automatically granted by the infrastructure agency
or local government unit the franchise to operate and maintain the facility,
including the collection of tolls, fees, rentals; and charges in accordance with
Section 6 hereof.
In the case of a build-and-transfer arrangement, the contract shall be
awarded to the lowest complying bidder based on the present value of its
proposed, schedule of amortization payments for the facility to be
constructed according to the prescribed minimum design and performance
standards, plans and specifications: Provided, however, That a Filipino
constructor who submits an equally advantageous bid shall be given
preference.
A copy of each build-operate-and-transfer or build-and-transfer contract shall
forthwith be submitted to Congress for its information.
The requirement of public bidding is not an idle ceremony. It has been aptly said that in our
jurisdiction "public bidding is the policy and medium adhered to in Government procurement
and construction contracts under existing laws and regulations. It is the accepted method for
arriving at a fair and reasonable price and ensures that overpricing, favoritism, and other
anomalous practices are eliminated or minimized. And any Government contract entered into
without the required bidding is null and void and cannot adversely affect the rights of third
parties." (Bartolome C. Fernandez, Jr., A TREATISE ON GOVERNMENT CONTRACTS
UNDER PHILIPPINE LAW 25 [rev. ed. 1991], citing Caltex vs. Delgado Bros., 96 Phil. 368
[1954]).
The Office of the President, through then Executive Secretary Franklin Drilon Correctly
disapproved the contract because no public bidding is strict compliance with Section 5 of
R.A. No. 6957 was conducted. Secretary Drilon Further bluntly stated that the provision of
the Implementing Rules of said law authorizing negotiated contracts was of doubtful legality.
Indeed, it is null and void because the law itself does not recognize or allow negotiated
contracts.
However the majority opinion posits the view that since only private respondent EDSA LRT
was prequalified, then a public bidding would be "an absurd and pointless exercise." I submit
that the mandatory requirement of public bidding cannot be legally dispensed with simply
because only one was qualified to bid during the prequalification proceedings. Section 5
mandates that the BOT or BT contract should be awarded "to the lowest complying bidder,"
which logically means that there must at least be two (2) bidders. If this minimum
requirement is not met, then the proposed bidding should be deferred and a new
prequalification proceeding be scheduled. Even those who were earlier disqualified may by
then have qualified because they may have, in the meantime, exerted efforts to meet all the
qualifications.
This view of the majority would open the floodgates to the rigging of prequalification
proceedings or to unholy conspiracies among prospective bidders, which would even include
dishonest government officials. They could just agree, for a certain consideration, that only
one of them qualify in order that the latter would automatically corner the contract and obtain
the award.
That section 5 admits of no exception and that no bidding could be validly had with only one
bidder is likewise conclusively shown by the amendments introduced by R.A. No. 7718 Per
section 7 thereof, a new section denominated as Section 5-A was introduced in R.A. No.
6957 to allow direct negotiation contracts. This new section reads:
Sec. 5-A. Direct Negotiation Of Contracts Direct negotiation, shall be

resorted to when there is only one complying bidder left as defined
hereunder.
(a) If, after advertisement, only one contractor applies for
prequalification requirements, after which it is required to
submit a bid/proposal which subsequently found by the
agency/local government unit (LGU) to be complying.
(b) If, after advertisement, more than one contractor applied
for prequalification but only one meets the prequalification
requirements, after which it submits bid/proposal which is
found by the agency/local government unit (LGU) to be
complying,
(c) If after prequalification of more than one contractor only
one submits a bid which is found by the agency/LGU to be
complying.
(d) If, after prequalification, more than one contractor, only
one submit bids but only one is found by the agency/LGU to
be complying: Provided, That, any of the disqualified
prospective bidder may appeal the decision contractor of the
implementing agency/LGUs prequalification bids an award
committee within fifteen (15) working days to the head of the
agency, in case of national projects or to the Department of
the Interior and Local Government, in case of local projects
from the date the disqualification was made known to the
disqualified bidder Provided, That the implementing
agency/LGUs concerned should act on the appeal within
forty-five (45) working days from receipt thereof.
Can this amendment be given retroactive effect to the challenged contract so that it may now
be considered a permissible negotiated contract? I submit that it cannot be R.A. No. 7718
does not provide that it should be given retroactive effect to pre-existing contracts. Section
18 thereof says that it "shall take effect fifteen (15) days after its publication in at least two (2)
newspapers of general circulation." If it were the intention of Congress to give said act
retroactive effect then it would have so expressly provided. Article 4 of the Civil Code
provides that "[l]aws shall have no retroactive effect, unless the contrary is provided."
The presumption is that all laws operate prospectively, unless the contrary clearly appears or
is clearly, plainly, and unequivocally expressed or necessarily implied. In every case of
doubt, the doubt will be resolved against the retroactive application of laws. (Ruben E
Agpalo, STATUTORY CONSTRUCTION 225 [2d ed. 1990]). As to amendatory acts, or acts
which change an existing statute, Sutherland states:
In accordance with the rule applicable to original acts, it is presumed that
provisions added by the amendment affecting substantive rights are intended
to operate prospectively. Provisions added by the amendment that affect
substantive rights will not be construed to apply to transactions and events
completed prior to its enactment unless the legislature has expressed its
intent to that effect or such intent is clearly implied by the language of the
amendment or by the circumstances surrounding its enactment. (1 Frank E.

Horack, Jr., SUTHERLAND'S STATUTES AND STATUTORY
CONSTRUCTION 434-436 [1943 ed.]).
I vote then to grant the instant petition and to declare void the challenged contract and its
supplement.
FELICIANO, J., dissenting:
After considerable study and effort, and with much reluctance, I find I must dissent in the
instant case. I agree with many of the things set out in the majority opinion written by my
distinguished brother in the Court Quiason, J. At the end of the day, however, I find myself
unable to join in the result reached by the majority.
I join in the dissenting opinion written by Mr. Justice. Davide, Jr; which is appropriately drawn
on fairly narrow grounds. At the same time; I wish to address briefly one of the points made
by Justice Quiason in the majority opinion in his effort to meet the difficulties posed by
Davide Jr., J.
I refer to the invocation of the provisions of presidential Decree No. 1594 dated 11 June 1978
entitled: "Prescribing policies, Guidelines, Rules and Regulations for Government
Infrastructure Contracts" More specifically, the majority opinion invokes paragraph 1 of
Section 4 of this Degree which reads as follows:
Sec. 4. Bidding. Construction projects shall, generally be undertaken by
contract after competitive public bidding. Projects may be undertaken by
bidders or contractors, or where there is a conclusive evidence that greater
accordance with provisions of laws and acts on the matter, subject to the
approval of the Ministry of public Works, Transportation and
as the case may be, if the project cost is less than P1 Million, and of the
President of the Philippines, upon the recommendation of the Minister, if the
project cost is P1 Million or more.
xxx xxx xxx
I understand the unspoken theory in the majority opinion to be that above Section 4 and
presumably the rest of Presidential Decree No. 1594 continue to exist and to run parallel to
the provisions of Republic Act No. 6957, whether in its original form or as amended by
Republic Act No. 7718.
A principal difficulty with this approach is that Presidential Decree No. 1594 purports to apply
to all "government contracts for infrastructure and other construction projects." But Republic
Act No. 6957 as amended by Republic Act No. 7718, relates only to "infrastructure projects"
which are financed, constructed, operated and maintained "by the private sector" "through
the build/operate-and-transfer or build-and-transfer scheme" under Republic Act No. 6597
and under a series of other comparable schemes under Republic Act No. 7718. In other
words, Republic Act No. 6957 and Republic Act. No. 7718 must be held, in my view, to
be special statutes applicable to a more limited field of "infrastructure projects" than the wide-
ranging scope of application of the general statute i.e., Presidential Decree No. 1594. Thus,
the high relevance of the point made by Mr. Justice Davide that Republic Act No. 6957 in
specific connection with BCT- and BLT type and BLT type of contracts imposed
an unqualified requirement of public bidding set out in Section 5 thereof.
It should also be pointed out that under Presidential Decree No. 1594, projects may be
undertaken "by administration or force account or by negotiated contract only"
(1) in exceptional cases where time is of the essence; or
(2) where there is lack of bidders or contractors; or
(3) where there is a conclusive evidence that greater economy and efficiency
would be achieved through these arrangements, and in accordance with
provision[s] of laws and acts on the matter.
It must, upon the one hand, be noted that the special law Republic Act No. 6957 made
absolutely no mention of negotiated contracts being permitted to displace the requirement of
public bidding. Upon the other hand, Section 5-a, inserted in Republic Act No. 6957 by the
amending statute Republic Act No. 7718, does not purport to authorize direct negotiation of
contracts situations where there is a lack of pre-qualified contractors or, complying bidders.
Thus, even under the amended special statute, entering into contracts by negotiation
is not permissible in the other (2) categories of cases referred to in Section 4 of Presidential
Decree No. 1594, i.e., "in exceptional cases where time is of the essence" and "when there
is conclusive evidence that greater economy and efficiency would be achieved through these
arrangements, etc."
The result I reach is that insofar as BOT, etc.-types of contracts are concerned, the
applicable public bidding requirement is that set out in Republic Act No. 6957 and, with
respect to such type of contracts opened for pre-qualification and bidding after the date of
effectivity of Republic Act No. 7718, The provision of Republic Act No. 7718. The assailed
contract was entered into before Republic Act. No. 7718 was enacted.
The difficulties. of applying the provisions of Presidential Degree No. 1594 to the Edsa LRTtype of contracts are aggravated when one considers the detailed "Implementing Rules and
Regulations as amended April 1988" issued under that Presidential Decree. 1 For instance:
IB [2.5.2] 2.4.2 By Negotiated Contract
xxx xxx xxx
a. In times of emergencies arising from natural calamities
where immediate action is necessary to prevent imminent
loss of life and/or property.
b. Failure to award the contract after competitive public
bidding for valid cause or causes [such as where the prices
obtained through public bidding are all above the AAE and the
bidders refuse to reduce their prices to the AAE].
In these cases, bidding may be undertaken through sealed canvass of at

least three (3) qualified contractors. Authority to negotiate contracts for
projects under these exceptional cases shall be subject to prior approval by
heads of agencies within their limits of approving authority.
c. Where the subject project is adjacent or contiguous to an
on-going project and it could be economically prosecuted by
the same contractor provided that he has no negative
slippage and has demonstrated a satisfactory performance.
(Emphasis supplied).
Note that there is no reference at all in these Presidential Decree No. 1594 Implementing
Rules and Regulations to absence of pre-qualified applicants and bidders as justifying
negotiation of contracts as distinguished from requiring public bidding or a second public
bidding.
Note also the following provision of the same Implementing Rules and Regulations:
IB 1 Prequalification
The following may be become contractors for government projects:
1 Filipino
a. Citizens (single proprietorship)
b. Partnership of corporation duly organized under the laws of the
Philippines, and at least seventy five percent (75%) of the capital stock of
which belongs to Filipino citizens.
2. Contractors forming themselves into a joint venture, i.e., a group of two or
more contractors that intend to be jointly and severally responsible for a
particular contract, shall for purposes of bidding/tendering comply with LOI
630, and, aside from being currently and properly accredited by the
Philippine Contractors Accreditation Board, shall comply with the provisions
of R.A. 4566, provided thatjoint ventures in which Filipino ownership is less
than seventy five percent ( 75%) may be prequalified where the structures to
be built require the application of techniques and/or technologies which
are not adequately possessed by a Filipino entity as defined above.
[The foregoing shall not negate any existing and future commitments with
respect to the bidding and aware of contracts financed partly or wholly with
funds from international lending institutions like the Asian Development Bank
and the Worlds Bank as well as from bilateral and other similar sources.
(Emphases supplied)
The record of this case is entirely silent on the extent of Philippine equity in the Edsa LRT
Corporation; there is no suggestion that this corporation is organized under Philippine law
and is at least seventy-five (75%) percent owned by Philippine citizens.
Public bidding is the normal method by which a government keeps contractors honest and is
able to assure itself that it would be getting the best possible value for its money in any
construction or similar project. It is not for nothing that multilateral financial organizations like
the World Bank and the Asian Development Bank uniformly require projects financed by
them to be implemented and carried out by public bidding. Public bidding is much too
important a requirement casually to loosen by a latitudinarian exercise in statutory
construction.
The instant petition should be granted and the challenged contract and its supplement
should be nullified and set aside. A true public bidding, complete with a new prequalification
proceeding, should be required for the Edsa LRT Project.
Separate Opinions
I concur in all but Part III of the majority opinion. Because I hold that petitioners do not have
standing to sue, I join to dismiss the petition in this case. I write only to set forth what I
understand the grounds for our decisions petitioners do not have the rights to sue, whether
as legislators, taxpayers or citizens. As members of Congress, because they allege no
infringement of prerogative as legislators. 1 As taxpayers because petitioners allege neither an
unconstitutional exercise of the taxing or spending powers of Congress (Art VI, 24-25 and
29) 2 nor an illegal disbursement of public money. 3 As this Court pointed out in Bugnay Const. and
Dev. Corp. v. Laron, 4 a party suing as taxpayer "must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a
direct injury as a result of the enforcement of the questioned statute or contract, It is not sufficient
that has merely a general interest common to all members of the public." In that case, it was held
that a contract, whereby a local government leased property to a private party with the
understanding that the latter would build a market building and at the end of the lease would
transfer the building of the lessor, did not involve a disbursement of public funds so as to give
taxpayer standing to question the legality of the contract contracts I see no substantial difference,
as far as the standing is of taxpayers is concerned, between the contract there and the buildlease-transfer (BLT) contract being questioned by petitioners in this case.
Nor do petitioners have standing to bring this suit as citizens. In the cases 5 in which citizens
were authorized to sue, this Court found standing because it thought the constitutional claims
pressed for decision to be of "transcendental importance," as in fact it subsequently granted relief
to petitioners by invalidating the challenged statutes or governmental actions. Thus in the Lotto
case 6 relied upon by the majority for upholding petitioners standing, this Court took into account
the "paramount public interest" involved which "immeasurably affect[ed] the social, economic, and
moral well-being of the people . . . and the counter-productive and retrogressive effects of the
envisioned on-line lottery system:" 7 Accordingly, the Court invalidated the contract for the
operation of lottery.
But in the case at bar, the Court precisely finds the opposite by finding petitioners'
substantive contentions to be without merit To the extent therefore that a party's standing is
affected by a determination of the substantive merit of the case or a preliminary estimate
thereof, petitioners in the case at bar must be held to be without standing. This is in line with
our ruling in Lawyers League for a Better Philippines v. Aquino 8 and In re Bermudez 9 where
we dismissed citizens' actions on the ground that petitioners had no personality to sue and their
petitions did not state a cause of action. The holding that petitioners did not have standing
followed from the finding that they did not have a cause of action.
In order that citizens' actions may be allowed a party must show that he personally has
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. 10 As the U.S. Supreme Court has held:
Typically, . . . the standing inquiry requires careful judicial examination of a
complaint's allegation to ascertain whether the particular plaintiff is entitled to
an adjudication of the particular claims asserted. Is the injury too abstract, or
otherwise not appropriate, to be considered judicially cognizable? Is the line
of causation between the illegal conduct and injury too attenuated? Is the
prospect of obtaining relief from the injury as a result of a favorable ruling too
speculative? These questions and any others relevant to the standing inquiry
must be answered by reference to the Art III notion that federal courts may
exercise power only "in the last resort, and as a necessity, Chicago & Grand
Trunk R. Co. v. Wellman, 143 US 339, 345, 36 L Ed 176,12 S Ct 400 (1892),
and only when adjudication is "consistent with a system of separated powers
and [the dispute is one] traditionally thought to be capable of resolution
through the judicial process," Flast v Cohen, 392 US 83, 97, 20 L Ed 2d
947, .88 S Ct 1942 (1968). See Valley Forge, 454 US, at 472-473, 70 L Ed 2d
700, 102 S Ct 752. 11
Today's holding that a citizen, qua citizen, has standing to question a government contract
unduly expands the scope of public actions and sweeps away the case and controversy
requirement so carefully embodied in Art. VIII, 5 in defining the jurisdiction of this Court. The
result is to convert the Court into an office of ombudsman for the ventilation of generalized
grievances. Consistent with the view that this case has no merit I submit with respect that
petitioners, as representatives of the public interest, have no standing.
Narvasa, C.J., Bidin, Melo, Puno, Vitug and Francisco, JJ., concur.
DAVIDE, JR., J., dissenting:
After wading through the record of the vicissitudes of the challenged contract and evaluating
the issues raised and the arguments adduced by the parties, I find myself unable to joint
majority in the well-written ponencia of Mr. Justice Camilo P. Quiason.
I most respectfully submit that the challenged contract is void for at least two reasons: (a) it is
an-ultra-vires act of the Department of Transportation and Communications (DOTC) since
under R.A. 6957 the DOTC has no authority to enter into a Build-Lease-and-Transfer (BLT)
contract; and (b) even assuming arguendo that it has, the contract was entered into without
complying with the mandatory requirement of public bidding.
I
Respondents admit that the assailed contract was entered into under R.A. 6957. This law,
fittingly entitled "An Act Authorizing the Financing, Construction, Operation and Maintenance
of Infrastructure Projects by the Private Sector, and For Other Purposes," recognizes only
two (2) kinds of contractual arrangements between the private sector and government
infrastructure agencies: (a) the Build-Operate-and-Transfer (BOT) scheme and (b) the Build-
and-Transfer (BT) scheme. This conclusion finds support in Section 2 thereof which defines
only the BOT and BT schemes, in Section 3 which explicitly provides for said schemes thus:
Sec. 3 Private Initiative in Infrastructure. All government infrastructure
agencies, including government-owned and controlled corporations and local
government units, are hereby authorized to enter into contract with any duly
prequalified private contractor for the financing, construction, operation and
maintenance of any financially viable infrastructure facilities through the
build-operate-and transfer or build-and-transfer scheme, subject to the terms
and conditions hereinafter set forth; (Emphasis supplied).
and in Section 5 which requires public bidding of projects under both schemes.
All prior acts and negotiations leading to the perfection of the challenged contract were
clearly intended and pursued for such schemes.
A Build-Lease-and-Transfer (BLT) scheme is not authorized under the said law, and none of
the aforesaid prior acts and negotiations were designed for such unauthorized scheme.
Hence, the DOTC is without any power or authority to enter into the BLT contract in question.
The majority opinion maintains, however, that since "[t]here is no mention in the BOT Law
that the BOT and the BT schemes bar any other arrangement for the payment by the
government of the project cost," then "[t]he law must not be read in such a way as to rule
outer unduly restrict any variation within the context of the two schemes." This interpretation
would be correct if the law itself provides a room for flexibility. We find no such provisions in
R.A. No. 6957 if it intended to include a BLT scheme, then it should have so stated, for
contracts of lease are not unknown in our jurisdiction, and Congress has enacted several
laws relating to leases. That the BLT scheme was never intended as a permissible variation
"within the context" of the BOT and BT schemes is conclusively established by the passage
of R.A. No. 7718 which amends:
a. Section. 2 by adding to the original BOT and BT schemes the following
schemes:
1)
Build-own-and-operate (BOO)
2)
Build-Lease-and-transfer (BLT)
3)
Build-transfer-and-operate (BTO)
4)
Contract-add-and-operate (CAO)
5)
Develop-operate-and-transfer (DOT)
6)
Rehabilitate-operate-and-transfer (ROT)
7)
Rehabilitate-own-and-operate (ROO).
b) Section 3 of R.A. No. 6957 by deleting therefrom the phrase "through the
build-operate-and-transfer or build-and-transfer scheme.
II
Public bidding is mandatory in R.A. No. 6957. Section 5 thereof reads as follows:
Sec. 5 Public Bidding of Projects. Upon approval of the projects
mentioned in Section 4 of this Act, the concerned head of the infrastructure
agency or local government unit shall forthwith cause to be published, once
every week for three (3) consecutive weeks, in at least two (2) newspapers of
general circulation and in at least one (1) local newspaper which is circulated
in the region, province, city or municipality in which the project is to be
constructed a notice inviting all duly prequalified infrastructure contractors to
participate in the public bidding for the projects so approved. In the case of a
build-operate-and-transfer arrangement, the contract shall be awarded to the
lowest complying bidder based on the present value of its proposed tolls,
fees, rentals, and charges over a fixed term for the facility to be constructed,
operated, and maintained according to the prescribed minimum design and
performance standards plans, and specifications. For this purpose, the
winning contractor shall be automatically granted by the infrastructure agency
or local government unit the franchise to operate and maintain the facility,
including the collection of tolls, fees, rentals; and charges in accordance with
Section 6 hereof.
In the case of a build-and-transfer arrangement, the contract shall be
awarded to the lowest complying bidder based on the present value of its
proposed, schedule of amortization payments for the facility to be
constructed according to the prescribed minimum design and performance
standards, plans and specifications: Provided, however, That a Filipino
constructor who submits an equally advantageous bid shall be given
preference.
A copy of each build-operate-and-transfer or build-and-transfer contract shall
forthwith be submitted to Congress for its information.
The requirement of public bidding is not an idle ceremony. It has been aptly said that in our
jurisdiction "public bidding is the policy and medium adhered to in Government procurement
and construction contracts under existing laws and regulations. It is the accepted method for
arriving at a fair and reasonable price and ensures that overpricing, favoritism, and other
anomalous practices are eliminated or minimized. And any Government contract entered into
without the required bidding is null and void and cannot adversely affect the rights of third
parties." (Bartolome C. Fernandez, Jr., A TREATISE ON GOVERNMENT CONTRACTS
UNDER PHILIPPINE LAW 25 [rev. ed. 1991], citing Caltex vs. Delgado Bros., 96 Phil. 368
[1954]).
The Office of the president secretary through then Executive Secretary Franklin Drilon
Correctly disapproved the contract because no public bidding is strict compliance with
Section 5 of R.A. No. 6957 was conducted. Secretary Drilon Further bluntly stated that the
provision of the Implementing Rules of said law authorizing negotiated contracts was of
doubtful legality. Indeed, it is null and void because the law itself does not recognize or allow
negotiated contracts.
However the majority opinion posits the view that since only private respondent EDSA LRT
was prequalified, then a public bidding would be "an absurd and pointless exercise." I submit
that the mandatory requirement of public bidding cannot be legally dispensed with simply
because only one was qualified to bid during the prequalification proceedings. Section 5
mandates that the BOT or BT contract should be awarded "to the lowest complying bidder,"
which logically means that there must at least be two (2) bidders. If this minimum
requirement is not met, then the proposed bidding should be deferred and a new
prequalification proceeding be scheduled. Even those who were earlier disqualified may by
then have qualified because they may have, in the meantime, exerted efforts to meet all the
qualifications.
This view of the majority would open the floodgates to the rigging of prequalification
proceedings or to unholy conspiracies among prospective bidders, which would even include
dishonest government officials. They could just agree, for a certain consideration, that only
one of them qualify in order that the latter would automatically corner the contract and obtain
the award.
That section 5 admits of no exception and that no bidding could be validly had with only one
bidder is likewise conclusively shown by the amendments introduced by R.A. No. 7718 Per
section 7 thereof, a new section denominated as Section 5-A was introduced in R.A. No.
6957 to allow direct negotiation contracts. This new section reads:
Sec. 5-A. Direct Negotiation Of Contracts Direct negotiation, shall be
resorted to when there is only one complying bidder left as defined
hereunder.
(a) If, after advertisement, only one contractor applies for
prequalification requirements submit a bid/proposal which
subsequently found by the agency/local government unit
(LGU) to be complying.
(b) If, after advertisement, more than one contractor applied
for prequalification but only one meets the prequalification
.requirements, after which it submits bid/proposal which is
found by the agency/local government unit (LGU) to be
complying,
(c) If after prequalification of more than one contractor only
one submits a bid which is found by the agency/LGU to be
complying.
(d) If, after prequalification, more than one contractor, only

one submit bids but only one is found by the agency/LGU to
be complying: Provided, That, any of the disqualified
prospective bidder may appeal the decision contractor of the
implementing agency/LGUs prequalification bids an award
committee within fifteen (15) working days to the head of the
agency of national projects or to the Department of the
Interior and Local Government, in case of local projects from
the date the disqualification was made known to the
disqualified bidder Provided, That the implementing
agency/LGUs concerned should act on the appeal within
forty-five (45) working days from receipt thereof.
Can this amendment be given retroactive effect to the challenged contract so that it may now
be considered a permissible negotiated contract? I submit that it cannot be R.A. No. 7718
does not provide that it should be given retroactive effect to pre-existing contracts. Section
18 thereof says that it "shall take effect fifteen (15) after its publication in at least two (2)
newspapers of general circulation." If it were the intention of Congress to give said act
retroactive effect then it would have so expressly provided. Article 4 of the Civil Code
provides that "[l]aws shall have no retroactive effect, unless the contrary is provided."
The presumption is that all laws operate prospectively, unless the contrary clearly appears or
is clearly, plainly, and unequivocally expressed or necessarily implied. In every case of
doubt, the doubt will be resolved against the retroactive application of laws. (Ruben E
Agpalo, STATUTORY CONSTRUCTION 225 [2d ed. 1990]). As to amendatory acts, or acts
which change an existing statute, Sutherland states:
In accordance with the rule applicable to original acts, it is presumed that
provisions added by the amendment affecting substantive rights are intended
to operate prospectively. Provisions added by the amendment that affect
substantive rights will not be construed to apply to transactions and events
completed prior to its enactment unless the legislature has expressed its
intent to that effect or such intent is clearly implied by the language of the
amendment or by the circumstances surrounding its enactment. (1 Frank E.
Horack, Jr., SUTHERLAND'S STATUTES AND STATUTORY
CONSTRUCTION 434-436 [1943 ed.]).
I vote then to grant the instant petition and to declare void the challenged contract and its
supplement.
After considerable study and effort, and with much reluctance, I find I must dissent in the
instant case. I agree with many of the things set out in the majority opinion written by my
distinguished brother in the Court Quiason, J. At the end of the day, however, I find myself
unable to join in the result reached by the majority.
I join in the dissenting opinion written by Mr. Justice. Davide, Jr; which is appropriately drawn
on fairly narrow grounds. At the same time; I wish to address briefly one of Justice Quiason
in the majority opinion in his effort to meet the difficulties posed by Davide Jr., J.
I refer to the invocation of the provisions of presidential Decree No. 1594 dated 11 June 1978
entitled: "Prescribing policies, Guidelines, Rules and Regulations for Government
Infrastructure Contracts" More specifically, the majority opinion invokes paragraph 1 of
Section 4 of this Degree which reads as follows:
Sec. 4. Bidding. Construction projects shall, generally be undertaken by
contract after competitive public bidding. Projects may be undertaken by
bidders or contractors, or where there is a conclusive evidence that greater
accordance with provisions of laws and acts on the matter, subject to the
approval of the Ministry of public Works, Transportation and
as the case may be, if the project cost is less than P1 Million, and of the
president of the Philippines, upon the recommendation of the Minister, if the
project cost is P1 Million or more.
xxx xxx xxx
I understand the unspoken theory in the majority opinion utility and the ownership of the
facilities used to serve the public can be very w1594 continue to exist and to run parallel to
the provisions of Republic Act No. 6957, whether in its original form or as amended by
Republic Act No. 7718.
A principal difficulty with this approach is that Presidential Decree No. 1594 purports to apply
to all "government contracts for infrastructure and other construction projects" But Republic
Act No. 6957 as amended by Republic Act No. 7718, relates on to "infrastructure projects"
which are financed, constructed, operated and maintained "by the private sector" "through
the build/operate-and-transfer or build-and-transfer scheme" under Republic Act No. 6597
and under a series of other comparable schemes under Republic Act No. 7718. In other
words, Republic Act No. 6957 and Republic Act. No: 7718 must be held, in my view, to
be special statutes applicable to a more limited field of "infrastructure projects" than the wideranging scope of application of the general statute i.e., Presidential Decree No. 1594. Thus,
the high relevance of the point made by Mr. Justice Davide that Republic Act No. 6957 in
specific connection with BCT- and BLT type and BLT type of contracts imposed
an unqualified requirement of public bidding set out in Section 5 thereof.
It should also be pointed out that under Presidential Decree No. 1594, projects may be
undertaken "by administration or force account or by negotiated contract only "
(1) in exceptional cases where time is of the essence; or
(2) where there is lack of bidders or contractors; or
(3) where there is a conclusive evidence that greater economy and efficiency
would be achieved through these arrangements, and in accordance with
provision[s] of laws and acts on the matter.
It must, upon the one hand, be noted that the special law Republic Act- No. 6957 made
absolutely no mention ofnegotiated contracts being permitted to displace the requirement of
public bidding. Upon the other hand, Section 5-a, inserted in Republic Act No. 6957 by the
amending statute Republic Act No. 7718, does not purport to authorize direct negotiation of
contracts situations where there is a lack of pre-qualified contractors or, complying bidders.
Thus, even under the amended special statute, entering into contracts by negotiation
is not permissible in the other (2) categories of cases referred to in Section 4 of Presidential
Decree No. 1594, i.e., "in exceptional cases where time is of the essence" and "when there
is conclusive evidence that greater economy and efficiency would be achieved through these
arrangements, etc."
The result I reach is that insofar as BOT, etc.-types of contracts are concerned, the
applicable public bidding requirement is that set out in Republic Act No. 6957 and, with
respect to such type of contracts opened for pre-qualification and bidding after the date of
effectivity of Republic Act No. 7718. The provision of Republic Act No. 7718. The assailed
contract was entered into before Republic Act. No. 7718 was enacted.
The difficulties. of applying the provisions of presidential Degree No. 1594 to the Edsa LRTtype of contracts are aggravated when one considers the detailed" Implementing Rules and
Regulations as amended April 1988" issued under that Presidential Decree. 1 For instance:
IB [2.5.2] 2.4.2 By Negotiated Contract
xxx xxx xxx
a. In times of emergencies arising from natural calamities
where immediate action is necessary to prevent imminent
loss of life and/or property.
b. Failure to award the contract after competitive public
bidding for valid cause or causes [such as where the prices
obtained through public bidding are all above the AAE and the
bidders refuse to reduce their prices to the AAE].
In these cases, bidding may be undertaken through sealed canvass of at
least three (3) qualified contractors. Authority to negotiate contracts for
projects under these exceptional cases shall be subject to prior approval by
heads of agencies within their limits of approving authority.
c. Where the subject project is adjacent or contiguous to an
on-going project and it could be economically prosecuted by
the same contractor provided that he has no negative
slippage and has demonstrated a satisfactory performance.
(Emphasis supplied).
Note that there is no reference at all in these presidential Decree No. 1594 Implementing
Rules and Regulations to absence of pre-qualified applicants and bidders as justifying
negotiation of contracts as distinguished from requiring public bidding or a second public
bidding.
Note also the following provision of the same Implementing Rules and Regulations:
IB 1 Prequalification
The following may be become contractors for government projects:

1 Filipino
a. Citizens (single proprietorship)
b. Partnership of corporation duly organized under the laws of the
Philippines, and at least seventy five percent (75%) of the capital stock of
which belongs to Filipino citizens.
2. Contractors forming themselves into a joint venture, i.e., a group of two or
more contractors that intend to be jointly and severally responsible for a
particular contract, shall for purposes of bidding/tendering comply with LOI
630, and, aside from being currently and properly accredited by the
Philippine Contractors Accreditation Board, shall comply with the provisions
of R.A. 4566, provided thatjoint ventures in which Filipino ownership is less
than seventy five percent ( 75%) may be prequalified where the structures to
be built require the application of techniques and/or technologies which
are not adequately possessed by a Filipino entity as defined above.
[The foregoing shall not negate any existing and future commitments with
respect to the bidding and aware of contracts financed partly or wholly with
funds from international lending institutions like the Asian Development Bank
and the Worlds Bank as well as from bilateral and other similar sources.
(Emphases supplied)
The record of this case is entirely silent on the extent of Philippine equity in the Edsa LRT
Corporation; there is no suggestion that this corporation is organized under Philippine law
and is at least seventy-five (75%) percent owned by Philippine citizens.
Public bidding is the normal method by which a government keeps contractors honest and is
able to assure itself that it would be getting the best possible value for its money in any
construction or similar project. It is not for nothing that multilateral financial organizations like
the World Bank and the Asian Development Bank uniformly require projects financed by
them to be implemented and carried out by public bidding. Public bidding is much too
important a requirement casually to loosen by a latitudinarian exercise in statutory
construction.
The instant petition should be granted and the challenged contract and its supplement
should be nullified and set aside. A true public bidding, complete with a new prequalification
proceeding, should be required for the Edsa LRT Project.
Footnotes
1 Philconsa v. Enriquez, 235 SCRA 506 (1994); Gonzales v. Macaraig, 191
SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971).
2 Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947 (1968), cited in Igot v.
Comelec, 95 SCRA 392 (1980).
3 Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Sanidad v

Comelec, 73 SCRA 333 (1976).
4 176 SCRA 240, 251-2 (1989).
5 Emergency Powers Cases [Araneta v. Dinglasan]. 84 Phil. 368 (1949), Iloilo
Palay and Corn Planters Ass'n. v. Feliciano, 121 Phil. 358 (1965); Philconsa
v. Gimenez. 122 Phil. 894 (1965); CLU v. Executive Secretary, 194 SCRA
317 (1991).
6 Kilosbayan, Inc. v. Guingona, 232 SCRA 110 (1994).
7 Id. at 139.
8 G.R Nos. 73748, 73972, and 73990, May 22, 1986. (Questioning the
legitimacy of the Provisional Government of President Aquino).
9 145 SCRA 160 (1986). (Questioning whether President Aquino and Vice
President Laurel were the "President and Vice-President elected in the
February 7, 1986 election" within the meaning of Art XVIII, 5 of the
Constitution.
10 Valley Forge College v. Americans United, 454 U.S. 464, 70 L. Ed. 2d 700
(1982); Bugnay Const. and Dev. Corp. v. Laron, supra, note 4.
11 Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 170 (1984).
1 Text in 84 Official Gazette, No. 23, pp. 33-37, et seq. (June 1988).
ITF V COMELEC
EN BANC
[G.R. No. 159139. January 13, 2004]
INFORMATION
TECHNOLOGY FOUNDATION
OF
THE
PHILIPPINES, MA.
CORAZON
M. AKOL,
MIGUEL
UY, EDUARDO H. LOPEZ, AUGUSTO C.LAGMAN, REX C.
DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL
ALCUAZ
JR., petitioners,
vs. COMMISSION
ON
ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS
SR.; COMELEC BIDDING and AWARD COMMITTEE
CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE

GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and
BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS,
INC.; and MEGA PACIFIC CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence;[1] or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias. [2] In the present
case, the Commission on Elections approved the assailed Resolution and
awarded the subject Contract not only in clear violation of law and jurisprudence,
but also in reckless disregard of its own bidding rules and procedure. For the
automation of the counting and canvassing of the ballots in the 2004 elections,
Comelec awarded the Contract to Mega Pacific Consortium an entity that had not
participated in the bidding. Despite this grant, the poll body signed the actual
automation Contract with Mega Pacific eSolutions, Inc., a company that joined
the bidding but had not met the eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste,
without adequately checking and observing mandatory financial, technical and
legal requirements. It also accepted the proferred computer hardware and
software even if, at the time of the award, they had undeniably failed to pass
eight critical requirements designed to safeguard the integrity of elections,
especially the following three items:
Theyfailedtoachievetheaccuracyratingcriteriaof99.9995
percentsetupbytheComelecitself
Theywerenotabletodetectpreviouslydownloadedresultsat
variouscanvassingorconsolidationlevelsandtopreventthese
frombeinginputtedagain
Theywereunabletoprintthestatutorilyrequiredaudittrailsof
thecount/canvassatdifferentlevelswithoutanylossofdata
Because of the foregoing violations of law and the glaring grave abuse of
discretion committed by Comelec, the Court has no choice but to exercise its
solemn constitutional duty[3] to void the assailed Resolution and the subject
Contract. The illegal, imprudent and hasty actions of the Commission have not
only desecrated legal and jurisprudential norms, but have also cast serious
doubts upon the poll bodys ability and capacity to conduct automated
elections. Truly, the pith and soul of democracy -- credible, orderly, and peaceful
elections -- has been put in jeopardy by the illegal and gravely abusive acts of
Comelec.
The Case
Before us is a Petition[4] under Rule 65 of the Rules of Court, seeking (1) to
declare null and void Resolution No. 6074 of the Commission on Elections
(Comelec), which awarded Phase II of the Modernization Project of the
Commission to Mega Pacific Consortium (MPC); (2) to enjoin the implementation
of any further contract that may have been entered into by Comelec either with
Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI); and (3) to
compel Comelec to conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled from official
documents, the parties pleadings, as well as from admissions during the Oral
Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, [5] which authorized
Comelec to conduct a nationwide demonstration of a computerized election
system and allowed the poll body to pilot-test the system in the March 1996
elections in the Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436 [6] authorizing
Comelec to use an automated election system (AES) for the process of voting,
counting votes and canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated counting
machines (ACMs), computer equipment, devices and materials; and to adopt
new electoral forms and printing materials.
Initially intending to implement the automation during the May 11, 1998
presidential elections, Comelec -- in its Resolution No. 2985 dated February 9,
1998[7] -- eventually decided against full national implementation and limited the
automation to the Autonomous Region in Muslim Mindanao (ARMM). However,
due to the failure of the machines to read correctly some automated ballots in
one town, the poll body later ordered their manual count for the entire Province of
Sulu.[8]
In the May 2001 elections, the counting and canvassing of votes for both
national and local positions were also done manually, as no additional ACMs had
been acquired for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a
modernization program for the 2004 elections. It resolved to conduct biddings for
the three (3) phases of its Automated Election System; namely, Phase I - Voter
Registration and Validation System; Phase II - Automated Counting and

Canvassing System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive
Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the
May 10, 2004 elections. Upon the request of Comelec, she authorized the
release of an additional P500 million.
On January 28, 2003, the Commission issued an Invitation to Apply for
Eligibility and to Bid, which we quote as follows:
INVITATIONTOAPPLYFORELIGIBILITYANDTOBID
TheCommissiononElections(COMELEC),pursuanttothemandateof
RepublicActNos.8189and8436,invitesinterestedofferors,vendors,
suppliersorlessorstoapplyforeligibilityandtobidfortheprocurementby
purchase,lease,leasewithoptiontopurchase,orotherwise,supplies,
equipment,materialsandservicesneededforacomprehensiveAutomated
ElectionSystem,consistingofthree(3)phases:(a)registration/verificationof
voters,(b)automatedcountingandconsolidationofvotes,and(c)electronic
transmissionofelectionresults,withanapprovedbudgetofTWOBILLION
FIVEHUNDREDMILLION(Php2,500,000,000)Pesos.
Onlybidsfromthefollowingentitiesshallbeentertained:
a.DulylicensedFilipinocitizens/proprietorships;
b.PartnershipsdulyorganizedunderthelawsofthePhilippinesandof
whichatleastsixtypercent(60%)oftheinterestbelongsto
citizensofthePhilippines;
c.CorporationsdulyorganizedunderthelawsofthePhilippines,andof
whichatleastsixtypercent(60%)oftheoutstandingcapitalstock
belongstocitizensofthePhilippines;
d.Manufacturers,suppliersand/ordistributorsformingthemselvesinto
ajointventure,i.e.,agroupoftwo(2)ormoremanufacturers,
suppliersand/ordistributorsthatintendtobejointlyandseverally
responsibleorliableforaparticularcontract,providedthat
Filipinoownershipthereofshallbeatleastsixtypercent(60%);
and
e.CooperativesdulyregisteredwiththeCooperatives
DevelopmentAuthority.
Biddocumentsforthethree(3)phasesmaybeobtainedstarting10February
2003,duringofficehoursfromtheBidsandAwardsCommittee(BAC)
Secretariat/OfficeofCommissionerResurreccionZ.Borra,7 thFloor,Palacio
delGovernador,Intramuros,Manila,uponpaymentattheCashDivision,
CommissiononElections,incashorcashierscheck,payabletothe
CommissiononElections,ofanonrefundableamountofFIFTEEN
THOUSANDPESOS(Php15,000.00)foreachphase.Forthispurpose,
interestedofferors,vendors,suppliersorlessorshavetheoptiontoparticipate
inanyorallofthethree(3)phasesofthecomprehensiveAutomatedElection
System.
APreBidConferenceisscheduledon13February2003,at9:00a.m.atthe
SessionHall,CommissiononElections,PostigoStreet,Intramuros,
Manila.Shouldtherebequestionsonthebiddocuments,biddersarerequiredto
submittheirqueriesinwritingtotheBACSecretariatpriortothescheduled
PreBidConference.
DeadlineforsubmissiontotheBACofapplicationsforeligibilityandbid
envelopesforthesupplyofthecomprehensiveAutomatedElectionSystem
shallbeattheSessionHall,CommissiononElections,PostigoStreet,
Intramuros,Manilaon28February2003at9:00a.m.
TheCOMELECreservestherighttoreviewthequalificationsofthebidders
afterthebiddingandbeforethecontractisexecuted.Shouldsuchreview
uncoveranymisrepresentationmadeintheeligibilitystatements,orany
changesinthesituationofthebiddertomateriallydowngradethesubstanceof
suchstatements,theCOMELECshalldisqualifythebidderuponduenotice
withoutanyobligationwhatsoeverforanyexpensesorlossesthatmaybe
incurredbyitinthepreparationofitsbid.[9]
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying
certain eligibility criteria for bidders and the schedule of activities for the project
bidding, as follows:
1.)OpentoFilipinoandforeigncorporationdulyregisteredand
licensedtodobusinessandisactuallydoingbusinessinthe
Philippines,subjecttoSec.43ofRA9184(AnActprovidingIn
theModernizationStandardizationandRegulationofthe
ProcurementActivitiesoftheGovernmentandforotherpurposes
etc.)
2.)TrackRecord:
a)Forcountingmachinesshouldhavebeenusedinatleastone(1)
politicalexercisewithnolessthanTwentyMillionVoters;
b)Forverificationofvotersthereferencesiteofanexistingdata
baseinstallationusingAutomatedFingerprintIdentification
System(AFIS)withatleastTwentyMillion.
3.)Tenpercent(10%)equityrequirementshallbebasedonthetotal
projectcost;and
4.)Performancebondshallbetwentypercent(20%)ofthebidoffer.
RESOLVEDmoreover,that:
1)A.Duetothedecisionthattheeligibilityrequirementsandtherest
oftheBiddocumentsshallbereleasedatthesametime,andthe
memorandumofComm.ResurreccionZ.BorradatedFebruary7,
2003,thedocumentstobereleasedonFriday,February14,2003
at2:00oclockp.m.shallbetheeligibilitycriteria,Termsof
Reference(TOR)andotherpertinentdocuments;
B.PreBidconferenceshallbeonFebruary18,2003;and
C.DeadlineforthesubmissionandreceiptoftheBidsshallbeon
March5,2003.
2)Theaforementioneddocumentswillbeavailableatthefollowingoffices:
a)VotersValidation:OfficeofComm.Javier
b)AutomatedCountingMachines:OfficeofComm.Borra
c)ElectronicTransmission:OfficeofComm.Tancangco [10]
On February 17, 2003, the poll body released the Request
(RFP) to procure the election automation machines. The Bids
Committee (BAC) of Comelec convened a pre-bid conference on
2003 and gave prospective bidders until March 10, 2003 to
respective bids.
for Proposal
and Awards
February 18,
submit their
Among others, the RFP provided that bids from manufacturers, suppliers
and/or distributors forming themselves into a joint venture may be entertained,
provided that the Philippine ownership thereof shall be at least 60 percent. Joint
venture is defined in the RFP as a group of two or more manufacturers, suppliers
and/or distributors that intend to be jointly and severally responsible or liable for a
particular contract.[11]
Basically, the public bidding was to be conducted under a two-envelope/two
stage system. The bidders first envelope or the Eligibility Envelope should
establish the bidders eligibility to bid and its qualifications to perform the acts if
accepted. On the other hand, the second envelope would be the Bid Envelope
itself. The RFP outlines the bidding procedures as follows:
25.DeterminationofEligibilityofProspectiveBidders
25.1TheeligibilityenvelopesofprospectiveBiddersshallbeopened
firsttodeterminetheireligibility.Incaseanyoftherequirements
specifiedinClause20ismissingfromthefirstbidenvelope,theBAC
shalldeclaresaidprospectiveBidderasineligibletobid.Bidenvelopes
ofineligibleBiddersshallbeimmediatelyreturnedunopened.
25.2TheeligibilityofprospectiveBiddersshallbedeterminedusing
simplepass/failcriteriaandshallbedeterminedaseithereligibleor
ineligible.IftheprospectiveBidderisratedpassedforallthelegal,
technicalandfinancialrequirements,heshallbeconsideredeligible.If
theprospectiveBidderisratedfailedinanyoftherequirements,he
shallbeconsideredineligible.
26.BidExamination/Evaluation
26.1TheBACwillexaminetheBidstodeterminewhethertheyare
complete,whetheranycomputationalerrorshavebeenmade,whether
requiredsecuritieshavebeenfurnished,whetherthedocumentshave
beenproperlysigned,andwhethertheBidsaregenerallyinorder.
26.2TheBACshallcheckthesubmitteddocumentsofeachBidder
againsttherequireddocumentsenumeratedunderClause20,to
ascertainiftheyareallpresentintheSecondbidenvelope(Technical
Envelope).Incaseone(1)ormoreoftherequireddocumentsis
missing,theBACshallratetheBidconcernedasfailedand
immediatelyreturntotheBidderitsThirdbidenvelope(Financial
Envelope)unopened.Otherwise,theBACshallratethefirstbid
envelopeaspassed.
26.3TheBACshallimmediatelyopentheFinancialEnvelopesofthe
BidderswhoseTechnicalEnvelopeswerepassedorratedonorabove
thepassingscore.OnlyBidsthataredeterminedtocontainallthebid
requirementsforbothcomponentsshallberatedpassedandshall
immediatelybeconsideredforevaluationandcomparison.
26.4IntheopeningandexaminationoftheFinancialEnvelope,the
BACshallannounceandtabulatetheTotalBidPriceas
calculated.Arithmeticalerrorswillberectifiedonthefollowingbasis:
Ifthereisadiscrepancybetweenwordsandfigures,theamountin
wordswillprevail.Ifthereisadiscrepancybetweentheunitpriceand
thetotalpricethatisobtainedbymultiplyingtheunitpriceandthe
quantity,theunitpriceshallprevailandthetotalpriceshallbe
correctedaccordingly.IfthereisadiscrepancybetweentheTotalBid
Priceandthesumofthetotalprices,thesumofthetotalpricesprevail
andtheTotalBidPriceshallbecorrectedaccordingly.
26.5FinancialProposalswhichdonotclearlystatetheTotalBidPrice
shallberejected.Also,TotalBidPriceascalculatedthatexceedsthe
approvedbudgetforthecontractshallalsoberejected.
27.ComparisonofBids
27.1Thebidpriceshallbedeemedtoembraceallcosts,chargesand
feesassociatedwithcarryingoutalltheelementsoftheproposed
Contract,includingbutnotlimitedto,licensefees,freightchargesand
taxes.
27.2TheBACshallestablishthecalculatedpricesofallBidsrated
passedandrankthesameinascendingorder.
xxxxxxxxx
29.Postqualification
29.1TheBACwilldeterminetoitssatisfactionwhethertheBidder
selectedashavingsubmittedthelowestcalculatedbidisqualifiedto
satisfactorilyperformtheContract.
29.2ThedeterminationwilltakeintoaccounttheBiddersfinancial,
technicalandproductioncapabilities/resources.Itwillbebasedupon
anexaminationofthedocumentaryevidenceoftheBidders
qualificationsubmittedbytheBidderaswellassuchotherinformation
astheBACdeemsnecessaryandappropriate.
29.3Abiddeterminedasnotsubstantiallyresponsivewillberejected
bytheBACandmaynotsubsequentlybemaderesponsivebythe
Bidderbycorrectionofthenonconformity.
29.4TheBACmaywaiveanyinformalityornonconformityor
irregularityinabidwhichdoesnotconstituteamaterialdeviation,
providedsuchwaiverdoesnotprejudiceoraffecttherelativeranking
ofanyBidder.
29.5ShouldtheBACfindthattheBiddercomplieswiththelegal,
financialandtechnicalrequirements,itshallmakeanaffirmative
determinationwhichshallbeaprerequisiteforawardoftheContractto
theBidder.Otherwise,itwillmakeanegativedeterminationwhich
willresultinrejectionoftheBiddersbid,inwhicheventtheBACwill
proceedtothenextlowestcalculatedbidtomakeasimilar
determinationofthatBidderscapabilitiestoperformsatisfactorily. [12]
Out of the 57 bidders,[13] the BAC found MPC and the Total Information
Management Corporation (TIMC) eligible. For technical evaluation, they were
referred to the BACs Technical Working Group (TWG) and the Department of
Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST
said that both MPC and TIMC had obtained a number of failed marks in the
technical evaluation. Notwithstanding these failures, Comelec en banc, on April
15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The
Commission publicized this Resolution and the award of the project to MPC on
May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein
Petitioners Information Technology Foundation of the Philippines, represented by
its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter [14] to
Comelec Chairman Benjamin Abalos Sr. They protested the award of the
Contract to Respondent MPC due to glaring irregularities in the manner in which
the bidding process had been conducted. Citing therein the noncompliance with
eligibility as well as technical and procedural requirements (many of which have
been discussed at length in the Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003, [15] the Comelec chairman -- speaking

through Atty. Jaime Paz, his head executive assistant -- rejected the protest and
declared that the award would stand up to the strictest scrutiny.
Hence, the present Petition.[16]
The Issues
In their Memorandum, petitioners raise the following issues for our
consideration:
1.TheCOMELECawardedandcontractedwithanoneligibleentity;x
xx
2.PrivaterespondentsfailedtopasstheTechnicalTestasrequiredin
theRFP.Notwithstanding,suchfailurewasignored.Ineffect,the
COMELECchangedtherulesafterthebiddingineffectchanging
thenatureofthecontractbiddedupon.
3.Petitionershavelocusstandi.
4.InstantPetitionisnotpremature.DirectresorttotheSupremeCourt
isjustified.[17]
In the main, the substantive issue is whether the Commission on Elections,
the agency vested with the exclusive constitutional mandate to oversee elections,
gravely abused its discretion when, in the exercise of its administrative functions,
it awarded to MPC the contract for the second phase of the comprehensive
Automated Election System.
Before discussing the validity of the award to MPC, however, we deem it
proper to first pass upon the procedural issues: the legal standing of petitioners
and the alleged prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch

as they are not challenging the validity or constitutionality of RA 8436. Moreover,
petitioners supposedly admitted during the Oral Argument that no law had been
violated by the award of the Contract. Furthermore, they allegedly have no actual
and material interest in the Contract and, hence, do not stand to be injured or
prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers,
registered voters and concerned citizens -- respond that the issues central to this
case are of transcendental importance and of national interest. Allegedly,
Comelecs flawed bidding and questionable award of the Contract to an
unqualified entity would impact directly on the success or the failure of the
electoral process. Thus, any taint on the sanctity of the ballot as the expression
of the will of the people would inevitably affect their faith in the democratic
system of government. Petitioners further argue that the award of any contract
for automation involves disbursement of public funds in gargantuan amounts;
therefore, public interest requires that the laws governing the transaction must be
followed strictly.
We agree with petitioners. Our nations political and economic future virtually
hangs in the balance, pending the outcome of the 2004 elections. Hence, there
can be no serious doubt that the subject matter of this case is a matter of public
concern and imbued with public interest; [18] in other words, it is of paramount
public interest[19] and transcendental importance.[20] This fact alone would justify
relaxing the rule on legal standing, following the liberal policy of this Court
whenever a case involves an issue of overarching significance to our society.
[21]
Petitioners legal standing should therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there
is a claim of illegal disbursement of public funds, [22] or if public money is being
deflected to any improper purpose; [23] or when petitioners seek to restrain
respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.[24] In the instant case, individual petitioners, suing as
taxpayers, assert a material interest in seeing to it that public funds are properly
and lawfully used. In the Petition, they claim that the bidding was defective, the
winning bidder not a qualified entity, and the award of the Contract contrary to
law and regulation. Accordingly, they seek to restrain respondents from
implementing the Contract and, necessarily, from making any unwarranted
expenditure of public funds pursuant thereto. Thus, we hold that petitioners
possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first
utilized the protest mechanism available to them under RA 9184, the
Government Procurement Reform Act, for the settlement of disputes pertaining to
procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding
and Awards Committee in all stages of procurement may be lodged with the head
of the procuring entity by filing a verified position paper and paying a protest
fee. Section 57 of the same law mandates that in no case shall any such protest
stay or delay the bidding process, but it must first be resolved before any award
is made.
On the other hand, Section 58 provides that court action may be resorted to
only after the protests contemplated by the statute shall have been
completed. Cases filed in violation of this process are to be dismissed for lack of
jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the
head of the procuring entity, and court actions shall be instituted pursuant to Rule
65 of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never
questioned the BAC Report finding MPC eligible to bid and recommending the
award of the Contract to it (MPC). According to respondents, the Report should
have been appealed to the Comelec en banc, pursuant to the aforementioned
sections of RA 9184. In the absence of such appeal, the determination and
recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated
April 15, 2003, awarding the project to Respondent MPC even before the BAC
managed to issue its written report and recommendation on April 21, 2003. Thus,
how could petitioners have appealed the BACs recommendation or report to the
head of the procuring entity (the chairman of Comelec), when the Comelec en
banc had already approved the award of the contract to MPC even before
petitioners learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003 session, it received
and approved the verbal report and recommendation of the BAC for the award of
the Contract to MPC, and that the BAC subsequently re-affirmed its verbal report
and recommendation by submitting it in writing on April 21, 2003. Respondents
insist that the law does not require that the BAC Report be in writing before
Comelec can act thereon; therefore, there is allegedly nothing irregular about the
Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BACs report
and recommendation to the head of the procuring entity (the Comelec
chair) only upon their discovery thereof, which at the very earliest would have
been on April 21, 2003, when the BAC actually put its report in writing and finally
released it. Even then, what would have been the use of protesting/appealing the
report to the Comelec chair, when by that time the Commission en banc
(including the chairman himself) had already approved the BAC Report and
awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of
the verbal BAC report on April 15, 2003 (immediately after the en banc session),
at that point the Commission en banc had already given its approval to the BAC
Report along with the award to MPC. To put it bluntly, the Comelec en banc itself
made it legally impossible for petitioners to avail themselves of the administrative
remedy that the Commission is so impiously harping on. There is no doubt that
they had not been accorded the opportunity to avail themselves of the process
provided under Section 55 of RA 9184, according to which a protest against a
decision of the BAC may be filed with the head of the procuring entity. Nemo
tenetur ad impossible,[26] to borrow private respondents favorite Latin excuse.[27]
Some Observations on the
BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this
interstice, we would just want to put forward a few observations regarding the
BAC Report and the Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that
the Report submitted by the BAC came only after the former had already
awarded the Contract, because the latter had been asked to render its report and
recommendation orally during the Commissions en banc session on April 15,
2003. Accordingly, Comelec supposedly acted upon such oral recommendation
and approved the award to MPC on the same day, following which the
recommendation was subsequently reduced into writing on April 21, 2003. While
not entirely outside the realm of the possible, this interesting and unique spiel
does not speak well of the process that Comelec supposedly went through in
making a critical decision with respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable
Commissioners would have been extremely conscious of the overarching need
for utter transparency. They would have scrupulously avoided the slightest hint of
impropriety, preferring to maintain an exacting regularity in the performance of
their duties, instead of trying to break a speed record in the award of multi-billionpeso contracts. After all, between April 15 and April 21 were a mere six (6)
days. Could Comelec not have waited out six more days for the written report of
the BAC, instead of rushing pell-mell into the arms of MPC? Certainly,
respondents never cared to explain the nature of the Commissions dire need to
act immediately without awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with
which Comelec acted to approve the multi-billion-peso deal, with its claim of
having been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to
lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation
on the part of the Comelec officials involved, it should nevertheless be conceded
that this cart-before-the-horse maneuver (awarding of the Contract ahead of the
BACs written report) would definitely serve as a clever and effective way of
averting and frustrating any impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of
exhausting administrative remedies. Respondents may not have realized it, but
the letter addressed to Chairman Benjamin Abalos Sr. dated May 29,
2003[28] serves to eliminate the prematurity issue as it was an actual written
protest against the decision of the poll body to award the Contract. The letter was
signed by/for, inter alia, two of herein petitioners: the Information Technology
Foundation of the Philippines, represented by its president, Alfredo M. Torres;
and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the procedure
outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that
petitioners need not exhaust administrative remedies in the light of Paat v. Court
of Appeals.[29] Paat enumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
(1)whenthereisaviolationofdueprocess,
(2)whentheissueinvolvedispurelyalegalquestion,
(3)whentheadministrativeactionispatentlyillegalamountingtolack
orexcessofjurisdiction,
(4)whenthereisestoppelonthepartoftheadministrativeagency
concerned,
(5)whenthereisirreparableinjury,
(6)whentherespondentisadepartmentsecretarywhoseactsas
analteregoofthePresidentbearstheimpliedandassumed
approvalofthelatter,
(7)whentorequireexhaustionofadministrativeremedieswouldbe
unreasonable,
(8)whenitwouldamounttoanullificationofaclaim,
(9)whenthesubjectmatterisaprivatelandinlandcaseproceedings,
(10)whentheruledoesnotprovideaplain,speedyandadequate
remedy,and
(11)whentherearecircumstancesindicatingtheurgencyofjudicial
intervention.[30]
The present controversy precisely falls within the exceptions listed as Nos. 7,
10 and 11: (7) when to require exhaustion of administrative remedies would be
unreasonable; (10) when the rule does not provide a plain, speedy and adequate
remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention. As already stated, Comelec itself made the exhaustion of
administrative remedies legally impossible or, at the very least, unreasonable.
In any event, the peculiar circumstances surrounding the unconventional
rendition of the BAC Report and the precipitate awarding of the Contract by the
Comelec en banc -- plus the fact that it was racing to have its Contract with MPC
implemented in time for the elections in May 2004 (barely four months away) -have combined to bring about the urgent need for judicial intervention, thus
prompting this Court to dispense with the procedural exhaustion of administrative
remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the
award is invalid, since Comelec gravely abused its discretion when it did the
following:
1. Awarded the Contract to MPC though it did not even participate in the
bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC
despite the issuance by the BAC of its Report, which formed the basis of the
assailed Resolution, only on April 21, 2003 [31]
4. Awarded the Contract, notwithstanding the fact that during the bidding
process, there were violations of the mandatory requirements of RA 8436 as well
as those set forth in Comelecs own Request for Proposal on the automated
election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the

failure of the bidders to pass the technical tests conducted by the Department of
Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the
bidding for the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the
Oral Argument, the Court deems it sufficient to focus discussion on the
following major areas of concern that impinge on the issue of grave abuse of
discretion:
A.Matterspertainingtotheidentity,existenceandeligibilityofMPCasa
bidder
B.Failureoftheautomatedcountingmachines(ACMs)topasstheDOST
technicaltests
C.RemedialmeasuresandretestingsundertakenbyComelecandDOSTafter
theaward,andtheireffectonthepresentcontroversy
A.
Failure to Establish the Identity,
Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the real bidder,
respondents insist that, contrary to petitioners allegations, the bidder was not
Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February
27, 2003, or 11 days prior to the bidding itself. Rather, the bidder was Mega
Pacific Consortium (MPC), of which MPEI was but a part. As proof thereof, they
point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI
allegedly for and on behalf of MPC.They also call attention to the official receipt
issued to MPC, acknowledging payment for the bidding documents, as proof that
it was the consortium that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory -Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/
Proponent) For: Mega Pacific Consortium -- and without any further proof, does
not by itself prove the existence of the consortium. It does not show that MPEI or
its president have been duly pre-authorized by the other members of the putative
consortium to represent them, to bid on their collective behalf and, more
important, to commit them jointly and severally to the bid undertakings. The letter
is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for

the bidding documents, constitute proof that it was the purported consortium that
participated in the bidding. Such receipts are issued by cashiers without any
legally sufficient inquiry as to the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and
qualification) of the putative consortium, Comelecs BAC should have examined
the bidding documents submitted on behalf of MPC. They would have easily
discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system
designed by Comelec under its RFP (Request for Proposal for the Automation of
the 2004 Election) mandated the use of a two-envelope, two-stage system. A
bidders first envelope (Eligibility Envelope) was meant to establish its eligibility to
bid and its qualifications and capacity to perform the contract if its bid was
accepted, while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of
incorporation, business registrations, licenses and permits, mayors permit, VAT
certification, and so forth; technical documents containing documentary evidence
to establish the track record of the bidder and its technical and production
capabilities to perform the contract; and financial documents, including audited
financial statements for the last three years, to establish the bidders financial
capacity.
In the case of a consortium or joint venture desirous of participating in the
bidding, it goes without saying that the Eligibility Envelope would necessarily
have to include a copy of the joint venture agreement, the consortium agreement
or memorandum of agreement -- or a business plan or some other instrument of
similar import -- establishing the due existence, composition and scope of such
aggrupation. Otherwise, how would Comelec know who it was dealing with, and
whether these parties are qualified and capable of delivering the products and
services being offered for bidding?[32]
In the instant case, no such instrument was submitted to Comelec during the
bidding process. This fact can be conclusively ascertained by scrutinizing the
two-inch thick Eligibility Requirements file submitted by Comelec last October 9,
2003, in partial compliance with this Courts instructions given during the Oral
Argument. This file purports to replicate the eligibility documents originally
submitted to Comelec by MPEI allegedly on behalf of MPC, in connection with
the bidding conducted in March 2003. Included in the file are the incorporation
papers and financial statements of the members of the supposed consortium and
certain certificates, licenses and permits issued to them.
However, there is no sign whatsoever of any joint venture agreement,

consortium agreement, memorandum of agreement, or business plan executed
among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to
the Comelec for its consideration, as part of the bidding process.
It thus follows that, prior the award of the Contract, there was no
documentary or other basis for Comelec to conclude that a consortium had
actually been formed amongst MPEI, SK C&C and WeSolv, along with
Election.com and ePLDT.[33] Neither was there anything to indicate the exact
relationships between and among these firms; their diverse roles, undertakings
and prestations, if any, relative to the prosecution of the project, the extent of
their respective investments (if any) in the supposed consortium or in the project;
and the precise nature and extent of their respective liabilities with respect to the
contract being offered for bidding. And apart from the self-serving letter of March
7, 2003, there was not even any indication that MPEI was the lead company duly
authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec had no
basis at all for determining that the alleged consortium really existed and was
eligible and qualified; and that the arrangements among the members were
satisfactory and sufficient to ensure delivery on the Contract and to protect the
governments interest.
Notwithstanding such deficiencies, Comelec still deemed the consortium
eligible to participate in the bidding, proceeded to open its Second Envelope, and
eventually awarded the bid to it, even though -- per the Comelecs own RFP -- the
BAC should have declared the MPC ineligible to bid and returned the Second
(Bid) Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising
a consortium or joint venture, it should not have allowed them to avail themselves
of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-OperateTransfer Law), as amended by RA 7718. This provision states in part that a joint
venture/consortium proponent shall be evaluated based on the individual
or collective experience of the member-firms of the joint venture or consortium
and of the contractor(s) that it has engaged for the project. Parenthetically,
respondents have uniformly argued that the said IRR of RA 6957, as amended,
have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own
experience, financial and operational track record or lack thereof, it would surely
not have qualified and would have been immediately considered ineligible to bid,
as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily
failing to observe its own rules, policies and guidelines with respect to the bidding
process, thereby negating a fair, honest and competitive bidding.
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner
Florentino Tuason Jr., given in open court during the Oral Argument last October
7, 2003. The good commissioner affirmed that he was aware, of his own
personal knowledge, that there had indeed been a written agreement among the
consortium members,[34]although it was an internal matter among them, [35] and of
the fact that it would be presented by counsel for private respondent. [36]
However, under questioning by Chief Justice Hilario G. Davide Jr. and
Justice Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was
the commissioner-in-charge of Comelecs Legal Department, he had never seen,
even up to that late date, the agreement he spoke of.[37] Under further
questioning, he was likewise unable to provide any information regarding the
amounts invested into the project by several members of the claimed consortium.
[38]
A short while later, he admitted that the Commission had not taken a look at
the agreement (if any).[39]
He tried to justify his position by claiming that he was not a member of the
BAC. Neither was he the commissioner-in-charge of the Phase II Modernization
project (the automated election system); but that, in any case, the BAC and the
Phase II Modernization Project Team did look into the aspect of the composition
of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had
taken charge of evaluating the eligibility, qualifications and credentials of the
consortium-bidder, still, in all probability, the former would have referred the task
to Commissioner Tuason, head of Comelecs Legal Department. That task was
the appreciation and evaluation of the legal effects and consequences of the
terms, conditions, stipulations and covenants contained in any joint venture
agreement, consortium agreement or a similar document -- assuming of course
that any of these was available at the time. The fact that Commissioner Tuason
was barely aware of the situation bespeaks the complete absence of such
document, or the utter failure or neglect of the Comelec to examine it -- assuming
it was available at all -- at the time the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason
basically contradicted his statements in open court about there being one written
agreement among all the consortium members, when he subsequently
referred[40] to the four (4) Memoranda of Agreement (MOAs) executed by them. [41]
At this juncture, one might ask: What, then, if there are four MOAs instead of
one or none at all? Isnt it enough that there are these corporations coming
together to carry out the automation project? Isnt it true, as respondent aver, that
nowhere in the RFP issued by Comelec is it required that the members of the
joint venture execute a single written agreement to prove the existence of a joint
venture. Indeed, the intention to be jointly and severally liable may be evidenced
not only by a single joint venture agreement, but also by supplementary

documents executed by the parties signifying such intention. What then is the big
deal?
The problem is not that there are four agreements instead of only one. The
problem is that Comelec never bothered to check. It never based its decision on
documents or other proof that would concretely establish the existence of the
claimed consortium or joint venture or agglomeration. It relied merely on the selfserving representation in an uncorroborated letter signed by only one individual,
claiming that his company represented a consortium of several different
corporations. It concluded forthwith that a consortium indeed existed, composed
of such and such members, and thereafter declared that the entity was eligible to
bid.
True, copies of financial statements and incorporation papers of the alleged
consortium members were submitted. But these papers did not establish the
existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium
or joint venture. For instance, the papers may have been intended to show that
those companies were each qualified to be a sub-contractor (and nothing more)
in a major project. Those documents did not by themselves support the
assumption that a consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and
eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract,
and the members joint and several liability therefor, Comelec
nevertheless assumed that such consortium existed and was eligible. It then
went ahead and considered the bid of MPC, to which the Contract was eventually
awarded, in gross violation of the formers own bidding rules and procedures
contained in its RFP. Therein lies Comelecs grave abuse of discretion.
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and effective and binding
on, all the five consortium members -- as earlier claimed by Commissioner
Tuason in open court -- it turns out that what was actually executed were four
(4) separate and distinct bilateral Agreements.[42] Obviously, Comelec was
furnished copies of these Agreements only after the bidding process had been
terminated, as these were not included in the Eligibility Documents. These
Agreements are as follows:
A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv
A Teaming Agreement between MPEI and Election.com Ltd.
A Teaming Agreement between MPEI and ePLDT.

In sum, each of the four different and separate bilateral Agreements is valid
and binding only between MPEI and the other contracting party, leaving the other
consortium members total strangers thereto. Under this setup, MPEI
dealt separately with each of the members, and the latter (WeSolv, SK C&C,
Election.com, and ePLDT) in turn had nothing to do with one another, each
dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the
purpose of enabling the corporations to still qualify (even at that late stage) as a
consortium or joint venture, since the first two Agreements had allegedly set forth
the joint and several undertakings among the parties, whereas the latter
two clarified the parties respective roles with regard to the Project, with MPEI
being the independent contractor and Election.com and ePLDT the
subcontractors.
Additionally, the use of the phrase particular contract in the Comelecs
Request for Proposal (RFP), in connection with the joint and several liabilities of
companies in a joint venture, is taken by them to mean that all the members of
the joint venture need not be solidarily liable for the entire project or joint venture,
because it is sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the
four bilateral Agreements to Comelec after the end of the bidding process did
nothing to eliminate the grave abuse of discretion it had already committed on
April 15, 2003.
Deficiencies Have
Not Been Cured
In any event, it is also claimed that the automation Contract awarded by
Comelec incorporates all documents executed by the consortium members, even
if these documents are not referred to therein. The basis of this assertion
appears to be the passages from Section 1.4 of the Contract, which is
reproduced as follows:
AllContractDocumentsshallformpartoftheContracteveniftheyoranyone
ofthemisnotreferredtoormentionedintheContractasformingapart
thereof.EachoftheContractDocumentsshallbemutuallycomplementaryand
explanatoryofeachothersuchthatwhatisnotedinonealthoughnotshownin
theothershallbeconsideredcontainedinall,andwhatisrequiredbyanyone
shallbeasbindingasifrequiredbyall,unlessoneitemisacorrectionofthe
other.
TheintentoftheContractDocumentsistheproper,satisfactoryandtimely
executionandcompletionoftheProject,inaccordancewiththeContract
Documents.Consequently,allitemsnecessaryfortheproperandtimely
executionandcompletionoftheProjectshallbedeemedincludedinthe
Contract.
Thus, it is argued that whatever perceived deficiencies there were in the
supplementary contracts -- those entered into by MPEI and the other members of
the consortium as regards their joint and several undertakings -- have been
cured. Better still, such deficiencies have supposedly been prevented from
arising as a result of the above-quoted provisions, from which it can be
immediately established that each of the members of MPC assumes the same
joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to,
entitled The Automated Counting and Canvassing Project Contract, is between
Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not
MPC -- that is a party to the Contract. Nowhere in that Contract is there any
mention of a consortium or joint venture, of members thereof, much less of joint
and several liability. Supposedly executed sometime in May 2003, [43] the Contract
bears a notarization date of June 30, 2003, and contains the signature of Willy U.
Yu signing as president of MPEI (not for and on behalf of MPC), along with that
of the Comelec chair. It provides in Section 3.2 that MPEI (not MPC) is to supply
the Equipment and perform the Services under the Contract, in accordance with
the appendices thereof; nothing whatsoever is said about any consortium or joint
venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above
do not have the effect of curing (much less preventing) deficiencies in the
bilateral agreements entered into by MPEI with the other members of the
consortium, with respect to their joint and several liabilities. The term Contract
Documents, as used in the quoted passages of Section 1.4, has a well-defined
meaning and actually refers only to the following documents:
The Contract itself along with its appendices
The Request for Proposal (also known as Terms of Reference) issued
by the Comelec, including the Tender Inquiries and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be understood as
referring to or including the MOAs and the Teaming Agreements entered into by
MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear
and admits of no debate. The attempt to use the provisions of Section 1.4 to
shore up the MOAs and the Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion
that, from the above-quoted provisions, it can be immediately established that
each of the members of MPC assumes the same joint and several liability as the
other members. Earlier, respondents claimed exactly the opposite -- that the two
MOAs (between MPEI and SK C&C, and between MPEI and WeSolv) had set
forth the joint and several undertakings among the parties; whereas the two
Teaming Agreements clarified the parties respective roles with regard to the
Project, with MPEI being the independent contractor and Election.com and
ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective
liabilities cannot be the same. Precisely, the very clear terms and stipulations
contained in the MOAs and the Teaming Agreements -- entered into by MPEI
with SK C&C, WeSolv, Election.com and ePLDT -- negate the idea that these
members are on a par with one another and are, as such, assuming the same
joint and several liability.
Moreover, respondents have earlier seized upon the use of the term
particular contract in the Comelecs Request for Proposal (RFP), in order to argue
that all the members of the joint venture did not need to be solidarily liable for the
entire project or joint venture. It was sufficient that the lead company and the
member in charge of a particular contract or aspect of the joint venture would
agree to be solidarily liable. The glaring lack of consistency leaves us at a
loss. Are respondents trying to establish the same joint and solidary liability
among all the members or not?
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec
and the MPEI confirms the solidary undertaking of the lead company and the
consortium member concerned for each particular Contract, inasmuch as the
position of MPEI and anyone else performing the services contemplated under
the Contract is described therein as that of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the
first place, the contractual provision being relied upon by respondents is Article
14, Independent Contractors, which states: Nothing contained herein shall be
construed as establishing or creating between the COMELEC and MEGA the
relationship of employee and employer or principal and agent, it being
understood that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent contractor.
Obviously, the intent behind the provision was simply to avoid the creation of
an employer-employee or a principal-agent relationship and the complications
that it would produce. Hence, the Article states that the role or position of MPEI,
or anyone else performing on its behalf, is that of an independent contractor. It is
obvious to the Court that respondents are stretching matters too far when they
claim that, because of this provision, the Contract in effect confirms the solidary
undertaking of the lead company and the consortium member concerned for the
particular phase of the project. This assertion is an absolute non sequitur.
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the
consortium members under the Civil Code provisions on partnership, reasoning
that MPEI et al. represented themselves as partners and members of MPC for
purposes of bidding for the Project. They are, therefore, liable to the Comelec to
the extent that the latter relied upon such representation. Their liability as
partners is solidary with respect to everything chargeable to the partnership
under certain conditions.
The Court has two points to make with respect to this argument. First, it must
be recalled that SK C&C, WeSolv, Election.com and ePLDT never represented
themselves as partners and members of MPC, whether for purposes of bidding
or for something else. It was MPEI alone that represented them to be members
of a consortium it supposedly headed. Thus, its acts may not necessarily be held
against the other members.
Second, this argument of the OSG in its Memorandum [44] might possibly
apply in the absence of a joint venture agreement or some other writing that
discloses the relationship of the members with one another. But precisely, this
case does not deal with a situation in which there is nothing in writing to serve as
reference, leaving Comelec to rely on mere representations and therefore
justifying a falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well
as the Teaming Agreements of MPEI with Election.com and ePLDT (copies of
which have been furnished the Comelec) are very clear with respect to the extent
and the limitations of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities,
while joint and several with MPEI, are limited only to the particular areas of work
wherein their services are engaged or their products utilized. As for Election.com
and ePLDT, their separate Teaming Agreements specifically ascribe to them the
role of subcontractor vis--vis MPEI as contractor and, based on the terms of their
particular agreements, neither Election.com nor ePLDT is, with MPEI, jointly and
severally liable to Comelec.[45] It follows then that in the instant case, there is no
justification for anyone, much less Comelec, to resort to the rules on partnership
and partners liabilities.
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the

bidder, the members of MPC should be evaluated on a collective
basis. Therefore, they contend, the failure of MPEI to submit financial statements
(on account of its recent incorporation) should not by itself disqualify MPC, since
the other members of the consortium could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of
the members of MPC, their contribution of assets and sharing of risks, and the
community of their interest in the performance of the Contract lead to these
reasonable conclusions: (1) that their collective qualifications should be the basis
for evaluating their eligibility; (2) that the sheer enormity of the project renders it
improbable to expect any single entity to be able to comply with all the eligibility
requirements and undertake the project by itself; and (3) that, as argued by the
OSG, the RFP allows bids from manufacturers, suppliers and/or distributors that
have formed themselves into a joint venture, in recognition of the virtual
impossibility of a single entitys ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations
of RA 6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be
applicable, as proponents of BOT projects usually form joint ventures or
consortiums. Under the IRR, a joint venture/consortium proponent shall be
evaluated based on the individual or the collective experience of the memberfirms of the joint venture/consortium and of the contractors the proponent has
engaged for the project.
Unfortunately, this argument seems to assume that the collective nature of
the undertaking of the members of MPC, their contribution of assets and sharing
of risks, and the community of their interest in the performance of the Contract
entitle MPC to be treated as a joint venture or consortium; and to be evaluated
accordingly on the basis of the members collective qualifications when, in fact,
the evidence before the Court suggest otherwise.
This Court in Kilosbayan v. Guingona[46] defined joint venture as an
association of persons or companies jointly undertaking some commercial
enterprise; generally, all contribute assets and share risks. It requires a
community of interest in the performance of the subject matter, a right to direct
and govern the policy in connection therewith, and [a] duty, which may be altered
by agreement to share both in profit and losses.
Going back to the instant case, it should be recalled that the automation
Contract with Comelec was not executed by the consortium MPC -- or by MPEI
for and on behalf of MPC -- but by MPEI, period. The said Contract contains no
mention whatsoever of any consortium or members thereof. This fact alone
seems to contradict all the suppositions about a joint undertaking that would
normally apply to a joint venture or consortium: that it is a commercial enterprise
involving a community of interest, a sharing of risks, profits and losses, and so
on.
Now let us consider the four bilateral Agreements, starting with the
Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc.,
dated March 5, 2003. The body of the MOA consists of just seven (7) short
paragraphs that would easily fit in one page. It reads as follows:
1.ThepartiesagreetocooperateinsuccessfullyimplementingtheProjectin
thesubstanceandformasmaybemostbeneficialtobothpartiesandother
subcontractorsinvolvedintheProject.
2.MegaPacificshallberesponsibleforanycontractnegotiationsandsigning
withtheCOMELECand,subjecttothelattersapproval,agreestogiveWeSolv
anopportunitytobepresentatmeetingswiththeCOMELECconcerning
WeSolvsportionoftheProject.
3.WeSolvshallbejointlyandseverallyliablewithMegaPacificonlyforthe
particularproductsand/orservicessuppliedbytheformerfortheProject.
4.Eachpartyshallbearitsowncostsandexpensesrelativetothisagreement
unlessotherwiseagreeduponbytheparties.
5.Thepartiesundertaketodoallactsandsuchotherthingsincidentalto,
necessaryordesirableortheattainmentoftheobjectivesandpurposesofthis
Agreement.
6.Intheeventthatthepartiesfailtoagreeonthetermsandconditionsofthe
supplyoftheproductsandservicesincludingbutnotlimitedtothescopeofthe
productsandservicestobesuppliedandpaymentterms,WeSolvshallceaseto
beboundbyitsobligationsstatedintheaforementionedparagraphs.
7.AnydisputearisingfromthisAgreementshallbesettledamicablybythe
partieswheneverpossible.Shouldthepartiesbeunabletodoso,theparties
herebyagreetosettletheirdisputethrougharbitrationinaccordancewiththe
existinglawsoftheRepublicofthePhilippines.(Underscoringsupplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C
Co. Ltd., dated March 9, 2003, the body of which consists of only six (6)
paragraphs, which we quote:
1.AllpartiesagreetocooperateinachievingtheConsortiumsobjectiveof
successfullyimplementingtheProjectinthesubstanceandformasmaybe
mostbeneficialtotheConsortiummembersandinaccordancew/thedemand
oftheRFP.
2.MegaPacificshallhavefullpowersandauthoritytorepresentthe
ConsortiumwiththeComelec,andtoenterandsign,forandinbehalfofits
membersanyandallagreement/swhichmayberequiredintheimplementation
oftheProject.
3.EachoftheindividualmembersoftheConsortiumshallbejointlyand
severallyliablewiththeLeadFirmfortheparticularproductsand/orservices
suppliedbysuchindividualmemberfortheproject,inaccordancewiththeir
respectiveundertakingorsphereofresponsibility.
4.Eachpartyshallbearitsowncostsandexpensesrelativetothisagreement
unlessotherwiseagreeduponbytheparties.
5.Thepartiesundertaketodoallactsandsuchotherthingsincidentalto,
necessaryordesirablefortheattainmentoftheobjectivesandpurposesofthis
Agreement.
6.AnydisputearisingfromthisAgreementshallbesettledamicablybythe
partieswheneverpossible.Shouldthepartiesbeunabletodoso,theparties
herebyagreetosettletheirdisputethrougharbitrationinaccordancewiththe
existinglawsoftheRepublicofthePhilippines.(Underscoringsupplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any specifics or details as to the exact nature
and scope of the parties respective undertakings, performances and deliverables
under the Agreement with respect to the automation project. Likewise, the two
Agreements are quite bereft of pesos-and-centavos data as to the amount of
investments each party contributes, its respective share in the revenues and/or
profit from the Contract with Comelec, and so forth -- all of which are normal for
agreements of this nature. Yet, according to public and private respondents, the
participation of MPEI, WeSolv and SK C&C comprises fully 90 percent of the
entire undertaking with respect to the election automation project, which is worth
about P1.3 billion.
As for Election.com and ePLDT, the separate Teaming Agreements they
entered into with MPEI for the remaining 10 percent of the entire project
undertaking are ironically much longer and more detailed than the MOAs
discussed earlier. Although specifically ascribing to them the role
of subcontractor vis--vis MPEI as contractor, these Agreements are, however,
completely devoid of any pricing data or payment terms. Even the appended
Schedules supposedly containing prices of goods and services are shorn of any
price data. Again, as mentioned earlier, based on the terms of their particular
Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and
severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two
-- could be implemented in practice; and how a dispute between the parties or a
claim by Comelec against them, for instance, could be resolved without lengthy
and debilitating litigations. Absent any clear-cut statement as to the exact nature
and scope of the parties respective undertakings, commitments, deliverables and
covenants, one party or another can easily dodge its obligation and deny or
contest its liability under the Agreement; or claim that it is the other party that
should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of
investments to be contributed by each party, disbursements for expenses, the
parties respective shares in the profits and the like, it seems to the Court that this
situation could readily give rise to all kinds of misunderstandings and
disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the
supposed joint and several liabilities of the members of the consortium. The
Court is not even mentioning the possibility of a situation arising from a failure of
WeSolv and MPEI to agree on the scope, the terms and the conditions for the
supply of the products and services under the Agreement. In that situation, by
virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound by
its obligations -- including its joint and solidary liability with MPEI under the MOA
-- and could forthwith disengage from the project. Effectively, WeSolv could at
any time unilaterally exit from its MOA with MPEI by simply failing to
agree. Where would that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other
companies does not qualify them to be treated as a consortium or joint venture,
at least of the type that government agencies like the Comelec should be dealing
with. With more reason is it unable to agree to the proposal to evaluate the
members of MPC on a collective basis.
In any event, the MPC members claim to be a joint venture/consortium; and
respondents have consistently been arguing that the IRR for RA 6957, as
amended, should be applied to the instant case in order to allow a collective
evaluation of consortium members. Surprisingly, considering these facts,
respondents have not deemed it necessary for MPC members to comply with
Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.
According to the aforementioned provision, if the project proponent is a joint
venture or consortium, the members or participants thereof are required to
submit a sworn statement that, if awarded the contract, they shall bind
themselves to be jointly, severally and solidarily liable for the project proponents
obligations thereunder. This provision was supposed to mirror Section 5 of RA
6957, as amended, which states: In all cases, a consortium that participates in a
bid must present proof that the members of the consortium have bound
themselves jointly and severally to assume responsibility for any project. The
withdrawal of any member of the consortium prior to the implementation of the
project could be a ground for the cancellation of the contract.
The Court has certainly not seen any joint and several undertaking by the
MPC members that even approximates the tenor of that which is described
above. We fail to see why respondents should invoke the IRR if it is for their
benefit, but refuse to comply with it otherwise.
B.
DOST Technical Tests Flunked by the
Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive
issue: the ACMs failure to pass the tests of the Department of Science and
Technology (DOST).
After respondent consortium and the other bidder, TIM, had submitted their
respective bids on March 10, 2003, the Comelecs BAC -- through its Technical
Working Group (TWG) and the DOST -- evaluated their technical
proposals. Requirements that were highly technical in nature and that required
the use of certain equipment in the evaluation process were referred to the
DOST for testing. The Department reported thus:
TEST RESULTS MATRIX[47]
[TechnicalEvaluationofAutomatedCountingMachine]
KEYREQUIREMENTS
MEGAPACIFIC
CONSORTIUM
[QUESTIONS]
1.
TOTALINFORMATION
MANAGEMENT
YES
NO
YES
NO
Doesthemachinehavean
accuracyratingofatleast
99.995percent
AtCOLDenvironmental
condition
AtNORMAL
environmentalconditions
AtHARSHenvironmental
conditions
2.
3.
4.
Accuratelyrecordsand
reportsthedateandtimeof
thestartandendofcounting
ofballotsperprecinct?
Printselectionreturns
withoutanylossofdate
duringgenerationofsuch
reports?
Uninterruptiblebackup
powersystem,thatwill
engageimmediatelytoallow
operationofatleast10
minutesafteroutage,power
surgeorabnormalelectrical
occurrences?
5.
Machinereadstwosided
ballotsinonepass?
6.
Machinecandetect
previouslycountedballots
andpreventpreviously
countedballotsfrombeing
countedmorethanonce?
Note:This
particular
requirementnee
furtherverificat
7.
8.
Storesresultsofcounted
votesbyprecinctinexternal
(removable)storagedevice?
Datastoredinexternalmedia
isencrypted?
Note:This
particular
requirementnee
furtherverificat
Note:This
particular
requirementnee
furtherverificat
9.
Physicalkeyorsimilar
deviceallows,limits,or
restrictsoperationofthe
machine?
10. CPUspeedisatleast
400mHz?
11. Porttoallowuseofdotmatrix
printers?
Note:This
particular
requirementnee
furtherverificat
12. Generatesprintoutsofthe
electionreturnsinaformat
specifiedbytheCOMELEC?
Generatesprintouts
Informatspecifiedby
COMELEC
13. Printselectionreturnswithout
anylossofdataduring
generationofsuchreport?
14. Generatesanaudittrailofthe
countingmachine,bothhard
copyandsoftcopy?
Hardcopy
Softcopy
Note:This
particular
requirementnee
furtherverificat
15. DoestheCity/Municipal
CanvassingSystem
consolidateresultsfromall
precinctswithinitusingthe
encryptedsoftcopyofthe
datageneratedbythe
countingmachineandstored
ontheremovabledatastorage
device?
16. DoestheCity/Municipal
CanvassingSystem
consolidateresultsfromall
precinctswithinitusingthe
encryptedsoftcopyofthe
datageneratedbythe
countingmachineand
transmittedthroughan
electronictransmission
media?
17. DoesthesystemoutputaZero
City/MunicipalCanvass
Report,whichisprintedon
electiondaypriortothe
conductoftheactualcanvass
operation,thatshowsthatall
totalsforallthevotesforall
thecandidatesandother
information,areindeedzero
Note:This
particular
requirementnee
furtherverificat
Note:This
particular
requirementneeds
furtherverification
Note:This
particular
requirementnee
furtherverificat
Note:This
particular
requirementnee
furtherverificat
ornull?
18. Doesthesystemconsolidate
resultsfromallprecinctsin
thecity/municipalityusing
thedatastoragedevice
comingfromthecounting
machine?
Note:This
particular
requirementnee
furtherverificat
19. Isthemachine100%
accurate?
20. IstheProgramabletodetect
previouslydownloaded
precinctresultsandprevent
thesefrombeinginputted
againintotheSystem?
Note:This
particular
requirementnee
furtherverificat
Note:This
particular
requirementnee
furtherverificat
22. Cantheresultofthe
Note:This
particular
requirementnee
furtherverificat
Printsspecifiedreports
21. TheSystemisabletoprintthe
specifiedreportsandtheaudit
trailwithoutanylossofdata
duringgenerationofthe
abovementionedreports?
AuditTrail
city/municipalconsolidation
bestoredinadatastorage
device?
Note:This
particular
requirementnee
furtherverificat
23. Doesthesystemconsolidate
resultsfromallprecinctsin
theprovincial/district/
nationalusingthedatastorage
devicefromdifferentlevelsof
consolidation?
24. Isthesystem100%accurate?
Note:This
particular
requirementnee
furtherverificat
Note:This
particular
requirementnee
furtherverificat
25. IstheProgramabletodetect
previouslydownloaded
precinctresultsandprevent
thesefrombeinginputted
againintotheSystem?
Note:This
particular
requirementnee
furtherverificat
26. TheSystemisabletoprintthe
specifiedreportsandtheaudit
trailwithoutanylossofdata
duringgenerationofthe
abovementionedreports?
Printsspecifiedreports
AuditTrail
Note:This
particular
requirementnee
furtherverificat
27. Cantheresultsofthe
provincial/district/national
consolidationbestoredina
datastoragedevice?
According to respondents, it was only after the TWG and the DOST had
conducted their separate tests and submitted their respective reports that the
BAC, on the basis of these reports formulated its comments/recommendations
on the bids of the consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that the Phase II
project involving the acquisition of automated counting machines be awarded to
MPEI. It said:
AfterincisiveanalysisofthetechnicalreportsoftheDOSTandtheTechnical
WorkingGroupforPhaseIIAutomatedCountingMachine,theBACconsiders
adaptabilitytoadvancesinmoderntechnologytoensureaneffectiveand
efficientmethod,aswellasthesecurityandintegrityofthesystem.
TheresultsoftheevaluationconductedbytheTWGandthatoftheDOST(14
April2003report),wouldshowtheapparentadvantageofMegaPacificover
theothercompetitor,TIM.
Note:This
particular
requirementnee
furtherverificat
TheBACfurthernotedthatbothMegaPacificandTIMobtainedsomefailed
marksinthetechnicalevaluation.Ingeneral,thefailedmarksofTotal
InformationManagementasenumeratedaboveaffectthecountingmachine
itselfwhicharematerialinnature,constitutingnoncompliancetotheRFP.On
theotherhand,thefailedmarksofMegaPacificaremereformalitiesoncertain
documentaryrequirementswhichtheBACmaywaiveasclearlyindicatedin
theInvitationtoBid.
IntheDOSTtest,TIMobtained12failedmarksandmostlyattributedtothe
countingmachineitselfasstatedearlier.ThesearerequirementsoftheRFPand
thereforetheBACcannotdisregardthesame.
MegaPacificfailedin8itemshoweverthesearemostlyonthesoftwarewhich
canbecorrectedbyreprogrammingthesoftwareandthereforecanbereadily
corrected.
TheBACverballyinquiredfromDOSTonthestatusoftheretestofthe
countingmachinesoftheTIMandwasinformedthatthereportwillbe
forthcomingaftertheholyweek.TheBACwasinformedthattheretestisona
differentparameterstheyrebeingtwodifferentmachinesbeingtested.One
purposelytotestifpreviouslyreadballotswillbereadagainandtheotherfor
theotherfeaturessuchastwosidedballots.
Thesaidmachineandthesoftwarethereforemaynotbeconsideredthesame
machineandprogramassubmittedintheTechnicalproposalandthereforemay
beconsideredanenhancementoftheoriginalproposal.
AdvanceinformationrelayedtotheBACasof1:40PMof15April2003by
ExecutiveDirectorRonaldoT.ViloriaofDOSTisthattheresultofthetestin
thetwocountingmachinesofTIMcontainssubstantialerrorsthatmayleadto
thefailureofthesemachinesbasedonthespecificitemsoftheRFPthatDOST
hastocertify.
OPENING OF FINANCIAL BIDS
TheBACon15April2003,afternotifyingtheconcernedbiddersopenedthe
financialbidsintheirpresenceandtheresultswereasfollows:
MegaPacific:
Option1Outrightpurchase:BidPriceofPhp1,248,949,088.00
Option2Leaseoption:
70%DownpaymentofcostofhardwareorPhp642,755,757.07
Remainderpayableover50monthsoratotalofPhp642,755,757.07
Discountrateof15%p.a.or1.2532%permonth.
TotalNumberofAutomatedCountingMachine1,769ACMs
(Nationwide)
TIM:
TotalBidPricePhp1,297,860,560.00
TotalNumberofAutomatedCountingMachine2,272ACMs
(MindanaoandNCRonly)
Premisesconsidered,itappearsthatthebidofMegaPacificisthelowest
calculatedresponsivebid,andtherefore,theBidsandAwardsCommittee(BAC)
recommendsthatthePhaseIIprojectreAutomatedCountingMachinebeawarded
toMegaPacificeSolutions,Inc.[48]
The BAC, however, also stated on page 4 of its Report: Based on the 14
April 2003 report (Table 6) of the DOST, it appears that both Mega-Pacific and
TIM (Total Information Management Corporation) failed to meet some of the
requirements. Below is a comparative presentation of the requirements wherein
Mega-Pacific or TIM or both of them failed: x x x. What followed was a list of key
requirements, referring to technical requirements, and an indication of which of
the two bidders had failed to meet them.
Failure to Meet the
Required Accuracy Rating
The first of the key requirements was that the counting machines were to
have an accuracy rating of at least 99.9995 percent. The BAC Report
indicates that both Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the
Comelecs Request for Proposal (RFP). The RFP, on page 26, even states that
the ballot counting machines and ballot counting software must have an
accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a
reliable independent testing agency.
When questioned on this matter during the Oral Argument, Commissioner

Borra tried to wash his hands by claiming that the required accuracy rating of
99.9995 percent had been set by a private sector group in tandem with
Comelec. He added that the Commission had merely adopted the accuracy
rating as part of the groups recommended bid requirements, which it had not
bothered to amend even after being advised by DOST that such standard was
unachievable. This excuse, however, does not in any way lessen Comelecs
responsibility to adhere to its own published bidding rules, as well as to see to it
that the consortium indeed meets the accuracy standard.Whichever accuracy
rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact
remains that the machines of the so-called consortium failed to even reach the
lesser of the two. On this basis alone, it ought to have been disqualified and its
bid rejected outright.
At this point, the Court stresses that the essence of public bidding is violated
by the practice of requiring very high standards or unrealistic specifications that
cannot be met -- like the 99.9995 percent accuracy rating in this case -- only to
water them down after the bid has been award. Such scheme, which discourages
the entry of prospective bona fide bidders, is in fact a sure indication of fraud in
the bidding, designed to eliminate fair competition. Certainly, if no bidder meets
the mandatory requirements, standards or specifications, then no award should
be made and a failed bidding declared.
Failure of Software to Detect
Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the consortium as
well as TIM failed to meet another key requirement -- for the counting machines
software program to be able to detect previously downloaded precinct
results and to prevent these from being entered again into the counting
machine. This same deficiency on the part of both bidders reappears on page 7
of the BAC Report, as a result of the recurrence of their failure to meet the said
key requirement.
That the ability to detect previously downloaded data at different canvassing
or consolidation levels is deemed of utmost importance can be seen from the fact
that it is repeated three times in the RFP. On page 30 thereof, we find the
requirement that the city/municipal canvassing system software must be able to
detect previously downloaded precinct results and prevent these from being
inputted again into the system. Again, on page 32 of the RFP, we read that
the provincial/district canvassing system software must be able to detect
previously downloaded city/municipal results and prevent these from being
inputted again into the system. And once more, on page 35 of the RFP, we find
the requirement that the national canvassing system software must be able to
detect previously downloaded provincial/district results and prevent these from
being inputted again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which
should have been a cause for the gravest concern. Come May 2004,
unscrupulous persons may take advantage of and exploit such deficiency by
repeatedly downloading and feeding into the computers results favorable to a
particular candidate or candidates. We are thus confronted with the grim
prospect of election fraud on a massive scale by means of just a few key
strokes. The marvels and woes of the electronic age!
Inability to Print
the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate
that the ACMs of both bidders were unable to print the audit trail without any
loss of data. In the case of MPC, the audit trail system was not yet incorporated
into its ACMs.
This particular deficiency is significant, not only to this bidding but to the
cause of free and credible elections. The purpose of requiring audit trails is to
enable Comelec to trace and verify the identities of the ACM operators
responsible for data entry and downloading, as well as the times when the
various data were downloaded into the canvassing system, in order to forestall
fraud and to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting machines and
ballot counting software must print an audit trail of all machine operations for
documentation and verification purposes. Furthermore, the audit trail must be
stored on the internal storage device and be available on demand for future
printing and verifying. On pages 30-31, the RFP also requires that
the city/municipal canvassing system software be able to print an audit trail of the
canvassing operations, including therein such data as the date and time the
canvassing program was started, the log-in of the authorized users (the identity
of the machine operators), the date and time the canvass data were downloaded
into the canvassing system, and so on and so forth. On page 33 of the RFP, we
find
the
same
audit
trail
requirement
with
respect
to
the provincial/districtcanvassing system software; and again on pages 35-36
thereof, the same audit trail requirement with respect to the national canvassing
system software.
That this requirement for printing audit trails is not to be lightly brushed aside
by the BAC or Comelec itself as a mere formality or technicality can be readily
gleaned from the provisions of Section 7 of RA 8436, which authorizes the
Commission to use an automated system for elections.
The said provision which respondents have quoted several times, provides
that ACMs are to possess certain features divided into two classes: those that the
statute itself considers mandatory and other features or capabilities that the law
deems optional. Among those considered mandatory are provisions for audit
trails! Section 7 reads as follows: The System shall contain the following
features: (a) use of appropriate ballots; (b) stand-alone machine which can count
votes and an automated system which can consolidate the results immediately;
(c) with provisions for audit trails; (d) minimum human intervention; and (e)
adequate safeguard/security measures.(Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is
indeed mandatory, considering the wording of Section 7 of RA 8436. Neither can
Respondent Comelec deny that it has relied on the BAC Report, which indicates
that the machines or the software was deficient in that respect. And yet, the
Commission simply disregarded this shortcoming and awarded the Contract to
private respondent, thereby violating the very law it was supposed to implement.
C.
Inadequacy of Post Facto
Remedial Measures
Respondents argue that the deficiencies relating to the detection of
previously downloaded data, as well as provisions for audit trails, are mere
shortcomings or minor deficiencies in software or programming, which can be
rectified. Perhaps Comelec simply relied upon the BAC Report, which states on
page 8 thereof that Mega Pacific failed in 8 items[;] however these are mostly on
the software which can be corrected by re-programming x x x and therefore can
be readily corrected.
The undersigned ponentes questions, some of which were addressed to
Commissioner Borra during the Oral Argument, remain unanswered to this
day. First of all, who made the determination that the eight fail marks of Mega
Pacific were on account of the software -- was it DOST or TWG? How can we be
sure these failures were not the results of machine defects? How was it
determined that the software could actually be re-programmed and thereby
rectified? Did a qualified technical expert read and analyze the source
code [ 4 9 ] for the programs and conclude that these could be saved and
remedied? (Such determination cannot be done by any other means save by the
examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out the
study? Did he prepare a written report on his findings? Or did the Comelec just
make a wild guess?It does not follow that all defects in software programs can be
rectified, and the programs saved. In the information technology sector, it is
common knowledge that there are many badly written programs, with significant
programming errors written into them; hence it does not make economic sense to
try to correct the programs; instead, programmers simply abandon them and just
start from scratch. Theres no telling if any of these programs is unrectifiable,
unless a qualified programmer reads the source code.
And if indeed a qualified expert reviewed the source code, did he also
determine how much work would be needed to rectify the programs? And how
much time and money would be spent for that effort? Who would carry out the
work? After the rectification process, who would ascertain and how would it be
ascertained that the programs have indeed been properly rectified, and that they
would work properly thereafter? And of course, the most important question to
ask: could the rectification be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter
through. Comelec simply took the word of the BAC as gospel truth, without even
bothering to inquire from DOST whether it was true that the deficiencies noted
could possibly be remedied by re-programming the software. Apparently,
Comelec did not care about the software, but focused only on purchasing the
machines.
What really adds to the Courts dismay is the admission made by
Commissioner Borra during the Oral Argument that the software currently being
used by Comelec was merely the demo version, inasmuch as the final version
that would actually be used in the elections was still being developed and had not
yet been finalized.
It is not clear when the final version of the software would be ready for testing
and deployment. It seems to the Court that Comelec is just keeping its fingers
crossed and hoping the final product would work. Is there a Plan B in case it
does not? Who knows? But all these software programs are part and parcel of
the bidding and the Contract awarded to the Consortium. Why is it that the
machines are already being brought in and paid for, when there is as yet no way
of knowing if the final version of the software would be able to run them properly,
as well as canvass and consolidate the results in the manner required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still
valid to this day: Garbage in, garbage out. No matter how powerful, advanced
and sophisticated the computers and the servers are, if the software being
utilized is defective or has been compromised, the results will be no better than
garbage. And to think that what is at stake here is the 2004 national elections -the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19
Certifications issued by DOST declaring that some 285 counting machines had
been tested and had passed the acceptance testing conducted by the
Department on October 8-18, 2003. Among those tested were some machines
that had failed previous tests, but had undergone adjustments and thus passed
re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner

and by what standards or criteria the condition, performance and/or readiness of
the machines were re-evaluated and re-appraised and thereafter given the
passing mark. Apart from that fact, the remedial efforts of respondents were, not
surprisingly, apparently focused again on the machines -- the hardware. Nothing
was said or done about the software -- the deficiencies as to detection and
prevention of downloading and entering previously downloaded data, as well as
the capability to print an audit trail. No matter how many times the machines
were tested and re-tested, if nothing was done about the programming defects
and deficiencies, the same danger of massive electoral fraud remains. As
anyone who has a modicum of knowledge of computers would say, Thats
elementary!
And only last December 5, 2003, an Inq7.net news report quoted the
Comelec chair as saying that the new automated poll system would be used
nationwide in May 2004, even as the software for the system remained
unfinished. It also reported that a certain Titus Manuel of the Philippine Computer
Society, which was helping Comelec test the hardware and software, said that
the software for the counting still had to be submitted on December 15, while the
software for the canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we keep asking
ourselves: who is going to ensure that the software would be tested and would
work properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of
all machines (testing of every single unit) would not serve to eradicate the grave
abuse of discretion already committed by Comelec when it awarded the Contract
on April 15, 2003, despite the obvious and admitted flaws in the bidding process,
the failure of the winning bidder to qualify, and the inability of the ACMs and the
intended software to meet the bid requirements and rules.
Comelecs Latest
Assurances Are
Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious violations of law
and gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required
respondents to inform it as to the number of ACMs delivered and paid for, as well
as the total payment made to date for the purchase thereof. They were likewise
instructed to submit a certification from the DOST attesting to the number of
ACMs tested, the number found to be defective; and whether the reprogrammed
software has been tested and found to have complied with the requirements
under Republic Act No. 8436.[50]
In its Partial Compliance and Manifestation dated December 29, 2003,

Comelec informed the Court that 1,991 ACMs had already been delivered to the
Commission as of that date. It further certified that it had already paid the
supplier the sum of P849,167,697.41, which corresponded to 1,973 ACM units
that had passed the acceptance testing procedures conducted by the MIRDCDOST[51] and which had therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the
Court the following:
TheAutomatedCountingandCanvassingProjectinvolvesnotonlythe
manufacturingoftheACMhardwarebutalsothedevelopmentofthree(3)
typesofsoftware,whichareintendedforuseinthefollowing:
1.EvaluationofTechnicalBids
2.TestingandAcceptanceProcedures
3.ElectionDayUse.
Purchase of the First Type of
Software Without Evaluation
In other words, the first type of software was to be developed solely for the
purpose of enabling the evaluation of the bidders technical bid. Comelec
explained thus: In addition to the presentation of the ACM hardware, the bidders
were required to develop a base software program that will enable the ACM to
function properly. Since the software program utilized during the evaluation of
bids is not the actual software program to be employed on election day, there
being two (2) other types of software program that will still have to be developed
and thoroughly tested prior to actual election day use, defects in the base
software that can be readily corrected by reprogramming are considered minor in
nature, and may therefore be waived.
In short, Comelec claims that it evaluated the bids and made the decision to
award the Contract to the winning bidder partly on the basis of the operation of
the ACMs running a base software. That software was therefore nothing but a
sample or demo software, which would not be the actual one that would be used
on election day.Keeping in mind that the Contract involves the acquisition of not
just the ACMs or the hardware, but also the software that would run them, it is
now even clearer that the Contract was awarded without Comelec having seen,
much less evaluated, the final product -- the software that would finally be utilized
come election day. (Not even the near-final product, for that matter).
What then was the point of conducting the bidding, when the software that
was the subject of the Contract was still to be created and could conceivably
undergo innumerable changes before being considered as being in final
form? And that is not all!
No Explanation for Lapses
in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated Testing and Acceptance Procedures. As best as we can construe,
Comelec is claiming that this second type of software is also to be developed and
delivered by the supplier in connection with the testing and acceptance phase of
the acquisition process. The previous pleadings, though -- including the DOST
reports submitted to this Court -- have not heretofore mentioned any statement,
allegation or representation to the effect that a particular set of software was to
be developed and/or delivered by the supplier in connection with the testing and
acceptance of delivered ACMs.
What the records do show is that the imported ACMs were subjected to the
testing and acceptance process conducted by the DOST. Since the initial batch
delivered included a high percentage of machines that had failed the tests,
Comelec asked the DOST to conduct a 100 percent testing; that is, to test every
single one of the ACMs delivered. Among the machines tested on October 8 to
18, 2003, were some units that had failed previous tests but had subsequently
been re-tested and had passed. To repeat, however, until now, there has never
been any mention of a second set or type of software pertaining to the testing
and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim,
Comelec in the same submission also professes (in response to the concerns
expressed by this Court) that the reprogrammed software has been tested
and found to have complied with the requirements of RA 8436. It reasoned
thus: Since the software program is an inherent element in the automated
counting system, the certification issued by the MIRDC-DOST that one thousand
nine hundred seventy-three (1,973) units passed the acceptance test procedures
is an official recognition by the MIRDC-DOST that the software component of the
automated election system, which has been reprogrammed to comply with the
provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committees ACM Testing and Acceptance Manual, has passed the
MIRDC-DOST tests.
The facts do not support this sweeping statement of Comelec. A scrutiny of
the MIRDC-DOST letter dated December 15, 2003, [52] which it relied upon, does
not justify its grand conclusion. For claritys sake, we quote in full the lettercertification, as follows:
15December2003
HON.RESURRECCIONZ.BORRA
CommissionerinCharge
PhaseII,ModernizationProject
CommissiononElections
Intramuros,Manila
Attention:Atty.JoseM.Tolentino,Jr.
ProjectDirector
DearCommissionerBorra:
Wearepleasedtosubmit11DOSTTestCertificationsrepresenting11lotsand
covering158unitsofautomatedcountingmachines(ACMs)thatwehave
testedfrom0212December2003.
Todate,wehavetestedallthe1,991unitsofACMs,brokendownasfollow:
(sic)
1stbatch30units4thbatch438units
2ndbatch288units5thbatch438units
3rdbatch414units6thbatch383units
Itshouldbenotedthatatotalof18unitshavefailedthetest.Outofthese18
units,onlyone(1)unithasfailedtheretest.
Thankyouandwehopeyouwillfindeverythinginorder.
Verytrulyyours,
ROLANDOT.VILORIA,CESOIII
ExecutiveDirectorcum
Chairman,DOSTTechnicalEvaluationCommittee
Even a cursory glance at the foregoing letter shows that it is completely
bereft of anything that would remotely support Comelecs contention that the
software component of the automated election system x x x has been
reprogrammed to comply with RA 8436, and has passed the MIRDC-DOST
tests. There is no mention at all of any software reprogramming. If the MIRDCDOST had indeed undertaken the supposed reprogramming and the process
turned out to be successful, that agency would have proudly trumpeted its
singular achievement.
How Comelec came to believe that such reprogramming had been
undertaken is unclear. In any event, the Commission is not forthright and candid
with the factual details. If reprogramming has been done, who performed it and
when? What exactly did the process involve? How can we be assured that it was
properly performed?Since the facts attendant to the alleged reprogramming are
still shrouded in mystery, the Court cannot give any weight to Comelecs bare
allegations.
The fact that a total of 1,973 of the machines has ultimately passed the
MIRDC-DOST tests does not by itself serve as an endorsement of the
soundness of the software program, much less as a proof that it has been
reprogrammed. In the first place, nothing on record shows that the tests and retests conducted on the machines were intended to address the serious
deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does not
even indicate what kinds of tests or re-tests were conducted, their exact nature
and scope, and the specific objectives thereof. [53] The absence of relevant
supporting documents, combined with the utter vagueness of the letter, certainly
fails to inspire belief or to justify the expansive confidence displayed by
Comelec. In any event, it goes without saying that remedial measures such as
the alleged reprogramming cannot in any way mitigate the grave abuse of
discretion already committed as early as April 15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Courts anxiety in these words:
The reprogrammed software that has already passed the requirements of
Republic Act No. 8436 during the MIRDC-DOST testing and acceptance
procedures will require further customization since the following additional
elements, among other things, will have to be considered before the final
software can be used on election day: 1. Final Certified List of Candidates x x
x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x x
x 4. Encryption, digital certificates and digital signatures x x x. The certified list of
candidates for national elective positions will be finalized on or before 23 January
2004 while the final list of projects of precincts will be prepared also on the same
date. Once all the above elements are incorporated in the software program, the
Test Certification Group created by the Ad Hoc Technical Evaluation Committee
will conduct meticulous testing of the final software before the same can be used
on election day. In addition to the testing to be conducted by said Test
Certification Group, the Comelec will conduct mock elections in selected areas
nationwide not only for purposes of public information but also to further test the
final election day program. Public respondent Comelec, therefore, requests that
it be given up to 16 February 2004 to comply with this requirement.
The foregoing passage shows the imprudent approach adopted by Comelec

in the bidding and acquisition process. The Commission says that before the
software can be utilized on election day, it will require customization through
addition of data -- like the list of candidates, project of precincts, and so on. And
inasmuch as such data will become available only in January 2004 anyway, there
is therefore no perceived need on Comelecs part to rush the supplier into
producing the final (or near-final) version of the software before that time. In any
case, Comelec argues that the software needed for the electoral exercise can be
continuously developed, tested, adjusted and perfected, practically all the way up
to election day, at the same time that the Commission is undertaking all the other
distinct and diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention
to the counting and canvassing software during the entire bidding process, which
took place in February-March 2003. Granted that the software was defective,
could not detect and prevent the re-use of previously downloaded data or
produce the audit trail -- aside from its other shortcomings -- nevertheless, all
those deficiencies could still be corrected down the road. At any rate, the
software used for bidding purposes would not be the same one that will be used
on election day, so why pay any attention to its defects? Or to the Comelecs own
bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale
underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated
the public policy on public biddings (1) by allowing MPC/MPEI to participate in
the bidding even though it was not qualified to do so; and (2) by eventually
awarding the Contract to MPC/MPEI. Now, with the latest explanation given by
Comelec, it is clear that the Commission further desecrated the law on public
bidding by permitting the winning bidder to change and alter the subject of the
Contract (the software), in effect allowing a substantive amendment without
public bidding.
This stance is contrary to settled jurisprudence requiring the strict application
of pertinent rules, regulations and guidelines for public bidding for the purpose
of placing each bidder, actual or potential, on the same footing. The essence of
public bidding is, after all, an opportunity for fair competition, and a fair basis for
the precise comparison of bids. In common parlance, public bidding aims to level
the playing field. That means each bidder must bid under the same conditions;
and be subject to the same guidelines, requirements and limitations, so that the
best offer or lowest bid may be determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance
between the conditions under which bids are invited and those under which
proposals are submitted and approved; or, as in this case, the conditions under
which the bid is won and those under which the awarded Contract will be
complied with. The substantive amendment of the contract bidded out, without
any public bidding -- after the bidding process had been concluded -- is violative
of the public policy on public biddings, as well as the spirit and intent of RA
8436. The whole point in going through the public bidding exercise was
completely lost. The very rationale of public bidding was totally subverted by the
Commission.
From another perspective, the Comelec approach also fails to make
sense. Granted that, before election day, the software would still have to be
customized to each precinct, municipality, city, district, and so on, there still was
nothing at all to prevent Comelec from requiring prospective suppliers/bidders to
produce, at the very start of the bidding process, the next-to-final versions of the
software (the best software the suppliers had) -- pre-tested and ready to be
customized to the final list of candidates and project of precincts, among others,
and ready to be deployed thereafter. The satisfaction of such requirement would
probably have provided far better bases for evaluation and selection, as between
suppliers, than the so-called demo software.
Respondents contend that the bidding suppliers counting machines were
previously used in at least one political exercise with no less than 20 million
voters. If so, it stands to reason that the software used in that past electoral
exercise would probably still be available and, in all likelihood, could have been
adopted for use in this instance. Paying for machines and software of that
category (already tried and proven in actual elections and ready to be adopted
for use) would definitely make more sense than paying the same hundreds of
millions of pesos for demo software and empty promises of usable programs in
the future.
But there is still another gut-level reason why the approach taken by
Comelec is reprehensible. It rides on the perilous assumption that nothing would
go wrong; and that, come election day, the Commission and the supplier would
have developed, adjusted and re-programmed the software to the point where
the automated system could function as envisioned. But what if such optimistic
projection does not materialize? What if, despite all their herculean efforts, the
software now being hurriedly developed and tested for the automated system
performs dismally and inaccurately or, worse, is hacked and/or manipulated?
[54]
What then will we do with all the machines and defective software already
paid for in the amount of P849 million of our tax money? Even more
important, what will happen to our country in case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until February
16, 2004 to be able to submit a certification relative to the additional elements of
the software that will be customized, because for us to do so would
unnecessarily delay the resolution of this case and would just give the poll body
an unwarranted excuse to postpone the 2004 elections. On the other hand,
because such certification will not cure the gravely abusive actions complained of
by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in
speculation? Hardly. Rather, the Court holds that Comelec should not have
gambled on the unrealistic optimism that the suppliers software development
efforts would turn out well. The Commission should have adopted a much more
prudent and judicious approach to ensure the delivery of tried and tested
software, and readied alternative courses of action in case of failure. Considering
that the nations future is at stake here, it should have done no less.
Epilogue
Once again, the Court finds itself at the crossroads of our nations history. At
stake in this controversy is not just the business of a computer supplier, or a
questionable proclamation by Comelec of one or more public officials. Neither is
it about whether this country should switch from the manual to the automated
system of counting and canvassing votes. At its core is the ability and capacity of
the Commission on Elections to perform properly, legally and prudently its legal
mandate to implement the transition from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As
stated at the start of this Decision, Comelec has not merely gravely abused its
discretion in awarding the Contract for the automation of the counting and
canvassing of the ballots. It has also put at grave risk the holding of credible and
peaceful elections by shoddily accepting electronic hardware and software that
admittedly failed to pass legally mandated technical requirements. Inadequate as
they are, the remedies it proffers post facto do not cure the grave abuse of
discretion it already committed (1) on April 15, 2003, when it illegally made the
award; and (2) sometime in May 2003 when it executed the Contract for the
purchase of defective machines and non-existent software from a non-eligible
bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable
to place its imprimatur on this void and illegal transaction that seriously
endangers the breakdown of our electoral system. For this Court to cop-out and
to close its eyes to these illegal transactions, while convenient, would be to
abandon its constitutional duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the purchase of
the machines and all appurtenances thereto including the still-to-be-produced (or
in Comelecs words, to be reprogrammed) software, as well as all the payments
made therefor, have no basis whatsoever in law. The public funds expended
pursuant to the void Resolution and Contract must therefore be recovered from
the payees and/or from the persons who made possible the illegal
disbursements, without prejudice to possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility
for the failed bidding and award, and held accountable for the electoral mess
wrought by their grave abuse of discretion in the performance of their
functions. The State, of course, is not bound by the mistakes and illegalities of its
agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must first have a diligent and competent
electoral agency that can properly and prudently implement a well-conceived
automated election system.
At bottom, before the country can hope to have a speedy and fraud-free
automated election, it must first be able to procure the proper computerized
hardware and software legally, based on a transparent and valid system of public
bidding. As in any democratic system, the ultimate goal of automating elections
must be achieved by a legal, valid and above-board process of acquiring the
necessary tools and skills therefor. Though the Philippines needs an automated
electoral process, it cannot accept just any system shoved into its bosom through
improper and illegal methods. As the saying goes, the end never justifies the
means. Penumbral contracting will not produce enlightened results.
WHEREFORE,
the
Petition
is GRANTED. The
Court
hereby
declares NULL and VOID Comelec Resolution No. 6074 awarding the contract
for Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared null
and void is the subject Contract executed between Comelec and Mega Pacific
eSolutions (MPEI).[55] Comelec is further ORDERED to refrain from implementing
any other contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which
shall determine the criminal liability, if any, of the public officials (and conspiring
private individuals, if any) involved in the subject Resolution and Contract. Let the
Office of the Solicitor General also take measures to protect the government and
vindicate public interest from the ill effects of the illegal disbursements of public
funds made by reason of the void Resolution and Contract.
SO ORDERED.
Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., Vitug, and Ynares-Santiago, JJ., see separate opinion.
Puno, J., concur, and also joins the opinion of J. Ynares-Santiago.
Quisumbing, J., in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, and Azcuna, JJ., joins the dissent of J. Tinga.
Tinga, J., pls. see dissenting opinion.
[1]
Republic v. Cocofed, 372 SCRA 462, 493, December 14, 2001.
[2]
Taada v. Angara, 272 SCRA 18, 79, May 2, 1997.
[3]
Francisco v. House of Representatives, GR No. 160261 and consolidated cases, November 10,
2003, per Morales, J.
[4]
Rollo, Vol. I, pp. 3-48. While petitioners labeled their pleading as one for prohibition and
mandamus, its allegations qualify it also as one for certiorari.
[5]
An act authorizing the Commission on Elections to conduct a nationwide demonstration of a

computerized election system and pilot-test it in the March 1996 elections in the
Autonomous Region in Muslim Mindanao (ARMM) and for other purposes.
[6]
An act authorizing the Commission on Elections to use an automated election system in the
May 11, 1998 national or local elections and in subsequent national and local electoral
exercises, providing funds therefor and for other purposes.
[7]
Section 6 of RA 8436 provides [i]f in spite of its diligent efforts to implement this mandate in the
exercise of this authority, it becomes evident by February 9, 1998 that the Commission
cannot fully implement the automated election system for national positions in the May
11, 1998 elections, the elections for both national and local positions shall be done
manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the
automated election system shall be used for all positions.
[8]
Loong v. Comelec, 365 Phil. 386, April 14, 1999; see also Panganiban, Leadership by Example,
1999 ed., pp. 201-249.
[9]
Annex 7 of the Comment of Private Respondents MPC and MPEI, rollo, Vol. II, p. 638.
[10]
Annex 8 of the Comment of Private Respondents MPC and MPEI, rollo, Vol. II, pp. 641-642.
[11]
Annex G of the Petition, Request for Proposal, p. 12; rollo, Vol. I, p. 71.
[12]
Id., pp. 21-23 & 80-82.
[13]
According to Public Respondent Comelecs Memorandum prepared by the OSG, p. 8; rollo,

Vol. IV, p. 2413.
[14]
Photocopy appended as Annex B of the Petition; rollo, Vol. I, pp. 52-53.
[15]
Photocopy appended as Annex C of the Petition; rollo, Vol. I, pp. 54-55.
[16]
The case was deemed submitted for decision on November 5, 2003, upon this Courts receipt
of Private Respondent MPC/MPEIs Memorandum, which was signed by Attys.
Alfredo V. Lazaro Jr., Juanito I. Velasco Jr. and Ma. Concepcion V. Murillo of the Lazaro
Law Firm. On October 27, 2003, the Court received petitioners Memorandum, which was
signed by Atty. Alvin Jose B. Felizardo of Pastelero Law Office, and Public Respondent
Comelecs Memorandum, signed by Comelec Comm. Florentino A. Tuason Jr. Apart from
these, the Office of the Solicitor General (OSG) filed another Memorandum on behalf of
Comelec, also on October 27, 2003, signed by Asst. Sol. Gen. Carlos N. Ortega, Asst.
Sol. Gen. Renan E. Ramos, Sol. Jane E. Yu and Asso. Sol. Catherine Joy R. Mallari, with
a note that Sol. Gen. Alfredo L. Benipayo inhibited himself. The writing of the Decision in
this case was initially raffled to Justice Dante O. Tinga. However, during the Courts
deliberations, the present ponentes then Dissenting Opinion to the draft report of Justice
Tinga was upheld by the majority. Hence, the erstwhile Dissent was rewritten into this full
ponencia.
[17]
Page 11; rollo, Vol. IV, p. 2390. During the Oral Argument on October 7, 2003, the Court limited
the issues to the following: (1) locus standi of petitioners; (2) prematurity of the Petition
because of non-exhaustion of administrative remedies for failure to avail of protest
mechanisms; and (3) validity of the award and the Contract being challenged in the
Petition.
[18]
Chavez v. Presidential Commission on Good Government, 360 Phil. 133, December 9, 1998,
per Panganiban, J.
[19]
Kilosbayan, Inc. v. Morato, 320 Phil. 171, November 16, 1995, per Mendoza, J.
[20]
Tatad v. Secretary of the Department of Energy, 346 Phil. 321, November 5, 1997, per
Puno, J.
[21]
Del Mar v. Philippine Amusement and Gaming Corporation, 346 SCRA 485, November 29,
2000, per Puno, J.
[22]
Kilosbayan, Inc. v. Morato, supra.
[23]
Dumlao v. Comelec, 95 SCRA 392, January 22, 1980, per Melencio-Herrera, J.
[24]
Philconsa v. Mathay, 124 Phil. 890, October 4, 1966, per Reyes J.B.L., J.
[25]
Respondent Comelecs Memorandum, pp. 50-51.
[26]
The law obliges no one to perform the impossible.
[27]
See private respondents Memorandum, p. 60.
[28]
Photocopy appended as Annex B of the petition.
[29]
334 Phil. 146, January 10, 1997.
[30]
Id., p. 153, per Torres Jr., J.
[31]
Although by its Resolution 6074, Comelec awarded the bid to MPC, the actual Contract was
entered into by Comelec with MPEI. The Contract did not indicate an exact date of
execution (except that it was allegedly done on the ____ day of May,) but it was
apparently notarized on June 30, 2003.
[32]
In connection with this, public respondents, in their Memorandum made reference to the
Implementing Rules and Regulations of RA 6957 as amended by RA 7718 (the BuildOperate-Transfer Law), and considered said IRR as being applicable to the instant case on
a suppletory basis, pending the promulgation of implementing rules for RA 9184 (the
Government Procurement Act). For our purposes, it is well worth noting that Sec. 5.4 of the
IRR for RA 6957 as amended, speaks of prequalification requirements for project
proponents, and in sub-section (b)(i), it provides that, for purposes of evaluating a joint
venture or consortium, it shall submit as part of its prequalification statement a business
plan which shall among others identify its members and its contractor(s), and the
description of the respective roles said members and contractors shall play or undertake in
the project. If undecided on a specific contractor, the proponent may submit a short list of
contractors from among which it will select the final contractor. Short listed contractors are
required to submit a statement indicating willingness to participate in the project and
capacity to undertake the requirements of the project. The business plan shall disclose
which of the members of the joint venture/consortium shall be the lead member, the
financing arm, and/or facility operator(s), and the contractor(s). In other words, since public
respondents argue that the IRR of RA 6957 as amended would be suppletorily applicable to
this bidding, they could not have been unaware of the requirement under Sec. 5.4 (b)(i)
thereof, in respect of submission of the requisite business plan by a joint venture or
consortium participating in a bidding.
[33]
Now, what would prevent an enterprising individual from obtaining copies of the Articles of
Incorporation and financial statements of, let us say, San Miguel Corporation and Ayala
Corporation from the SEC, and using these to support ones claim that these two giant
conglomerates have formed a consortium with ones own penny-ante company for the
purpose of bidding for a multi-billion peso contract? As far as Comelec is concerned, the
answer seems to be: Nothing.
[34]
TSN, October 7, 2003, p. 104.
[35]
Ibid.
[36]
Id., pp. 104-105.
[37]
Id., pp. 103-108.
[38]
Id., pp. 108-114.
[39]
Id., pp. 142-145.
[40]
On pp. 42-43 of the Memorandum of public respondents, filed with this Court on October 27,
2003, Comm. Tuason himself signed this pleading in his capacity as counsel of all the
public respondents.
[41]
Copies of these four agreements were belatedly submitted to this Court by MPEI through a
Manifestation with Profuse Apologies filed on October 9, 2003.
[42]
Copies of the four separate bilateral agreements were submitted to the Court last October 9,
2003.
[43]
The date was carelessly stated as ____ May, 2003.
[44]
At p. 38.
[45]
During the Oral Argument, counsel for public respondents admitted that Comelec was aware
that not all the members of the consortium had agreed to be jointly and solidarily liable
with MPEI.
[46]
232 SCRA 110, 144, May 5, 1994, per Davide Jr., J. (now CJ).
[47]
Culled from table 6, DOST Report; rollo, Vol. II, pp. 1059-1072.
[48]
Annex I of the Petition, Vol. I, pp. 116-118.
[49]
Source code is the program instructions in their original form. Initially, a programmer writes a
computer program in a particular programming language. This form of the program is
called the source program, or more generically, source code. To execute the program,
however, the programmer must translate it into machine language, the language that the
computer understands. Source code is the only format that is readable by humans. When
you purchase programs, you usually receive them in their machine-language format. This
means that you can execute them directly, but you cannot read or modify them. Some
software manufacturers provide source code, but this is useful only if you are an
experienced programmer.
[50]
The key passages of the Courts Resolution of December 9, 2003 were cited and reproduced
verbatim in the Comelecs Partial Compliance and Manifestation.
[51]
Metals Industry Research and Development Center (MIRDC) of the Department of Science &
Technology (DOST).
[52]
Photocopy of the MIRDC-DOST letter of Dec. 15, 2003 is attached as Annex A to Respondent
Comelecs Partial Compliance and Manifestation. However, the 11 Test Certifications of
the DOST (covering 11 lots or 158 ACMs) which were purportedly attached to this letter,
have not been reproduced and submitted to the Court, for reasons known only to
respondents.
[53]
For example, one can conduct tests to see if certain machines will tip over and fall on their
sides when accidentally bumped, or if they have a tendency to collapse under their own
weight. A less frivolous example might be that of conducting the same tests, but lowering
the bar or passing mark.
[54]
In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled Digital dagdagbawas: a nonpartisan issue by Dean Jorge Bocobo, from which the following passages
appear:
The Commission on Elections will use automated counting machines to tally paper ballots in the
May elections, and a telecommunications network to transmit the results to headquarters,
along with CDs of the data. Yet, with only five months to go, the application software
packages for that crucial democratic exercise--several hundred thousand lines of

obscure and opaque code--has not yet even been delivered in its final form, Comelec
Chairman Benjamin Abalos admitted last week.
My jaw dropped in amazement. Having built software for General Electric Co.'s medical systems
business and military aircraft engines division (in another lifetime), I have learned the
hard and painful way that 90 percent of unintended fatal problems with complex software
lies in the last 10 percent of the code produced. From experience, I can assure you now
with metaphysical certainty that not even the people furiously writing that software know
whether it will actually work as intended on May 10, much less guarantee it. Simply put,
the proposed software-hardware combination has neither been tested completely nor
verified to comply with specifications.
[55]
Dated ____ May, 2003 but notarized on June 30, 2003.
JUMAMIL V CAF
THIRD DIVISION
VIVENCIO V. JUMAMIL, G.R. No. 144570

Petitioner,
Present:
PANGANIBAN, J., Chairman,
- versus - SANDOVAL-GUTIERREZ,
CORONA,
CARPIO MORALES, and
GARCIA, JJ.
JOSE J. CAFE, GLICERIO L.
ALERIA, RUDY G. ADLAON,
DAMASCENO AGUIRRE, RAMON
PARING,
MARIO
ARGUELLES,
ROLANDO STA. ANA, NELLIE
UGDANG, PEDRO ATUEL, RUBY
BONSOBRE, RUTH FORNILLOS,
DANIEL GATCHALIAN, RUBEN

GUTIERREZ,
JULIET
GATCHALIAN, ZENAIDA POBLETE,
ARTHUR
LOUDY, LILIAN
LU,
ISABEL MEJIA, EDUARDO
ARGUELLES, LAO SUI KIEN,
SAMUEL CONSOLACION, DR.
ARTURO MONTERO, DRA. LILIOSA
MONTERO, PEDRO LACIA, CIRILA
LACIA, EVELYN SANGALANG,
DAVID CASTILLO, ARSENIO
SARMIENTO, ELIZABETH SY,
METODIO
NAVASCA,
HELEN
VIRTUDAZO, IRENE LIMBAGA,
SYLVIA BUSTAMANTE,
JUANA
DACALUS, NELLIE RICAMORA,
JUDITH ESPINOSA, PAZ KUDERA,
EVELYN PANES, AGATON
BULICATIN, PRESCILLA GARCIA,
ROSALIA OLITAO, LUZVIMINDA
AVILA, GLORIA OLAIR, LORITA
MENCIAS, RENATOARIETA,
EDITHA
ACUZAR, LEONARDA
VILLACAMPA, ELIAS JARDINICO,
BOBINO NAMUAG,FELIMON
NAMUAG,
EDGAR
CABUNOC,
HELEN ARGUELLES, HELEN ANG,
FELECIDAD
PRIETO,
LUISITO
GRECIA, LILIBETH
PARING,
RUBEN CAMACHO, ROSALINDA
LALUNA, LUZ YAP, ROGELIO
LAPUT, ROSEMARIE WEE,

TACOTCHE
RANAIN, AVELINO
DELOS REYES and ROGASIANO
OROPEZA,
Respondents. Promulgated:
September 21, 2005
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CORONA, J.:
In this petition for review on certiorari under Rule 45 of the

Rules of Court, petitioner Vivencio V. Jumamil seeks to reverse
the decision of the Court of Appeals dated July 24, 2000 [1] in
CA-G.R. CV No. 35082, the dispositive portion of which read:
With the foregoing, the assailed Decision of Branch 4, Regional
Trial Court of Panabo Davao dated 26 November 1990 in Sp. Civil
Action No. 89-1 is hereby AFFIRMED.[2]
The Regional Trial Court dismissed petitioners petition for

declaratory relief with prayer for preliminary injunction and
writ of restraining order, and ordered the petitioner to pay
attorneys fees in the amount of P1,000 to each of the 57
private respondents.[3]
The factual antecedents follow.

In 1989, petitioner Jumamil[4] filed before the Regional
Trial Court (RTC) of Panabo, Davao del Norte a petition for
declaratory relief with prayer for preliminary injunction and
writ of restraining order against public respondents Mayor
Jose J. Cafe and the members of the Sangguniang Bayan of
Panabo, Davao del Norte. He questioned the constitutionality
of Municipal Resolution No. 7, Series of 1989 (Resolution No.
7).
Resolution No. 7, enacting Appropriation Ordinance No.
111, provided for an initial appropriation of P765,000 for the
construction of stalls around a proposed terminal fronting the
Panabo Public Market[5] which was destroyed by fire.
Subsequently, the petition was amended due to the
passage of Resolution No. 49, series of 1989 (Resolution No.
49), denominated as Ordinance No. 10, appropriating a
further
amount
of P1,515,000
for
the
construction
of
additional stalls in the same public market.[6]

Prior to the passage of these resolutions, respondent
Mayor Cafe had already entered into contracts with those who
advanced and deposited (with the municipal treasurer) from
their personal funds the sum of P40,000 each. Some of the
parties were close friends and/or relatives of the public
respondents.[7] The construction of the stalls which petitioner
sought to stop through the preliminary injunction in the RTC
was nevertheless finished, rendering the prayer therefor moot

and academic. The leases of the stalls were then awarded by
public raffle which, however, was limited to those who had
deposited P40,000 each.[8] Thus, the petition was amended
anew to include the 57 awardees of the stalls as private
respondents.[9]
Petitioner alleges that Resolution Nos. 7 and 49 were
unconstitutional because they were:
passed for the business, occupation, enjoyment and benefit of
private respondents who deposited the amount of P40,000.00 for
each stall, and with whom also the mayor had a prior contract to
award the would be constructed stalls to all private respondents. As
admitted by public respondents some of the private respondents
are close friends and/or relatives of some of the public respondents
which makes the questioned acts discriminatory. The questioned
resolutions and ordinances did not provide for any notice of
publication that the special privilege and unwarranted benefits
conferred on the private respondents maybe (sic) availed of by
anybody who can deposit the amount of P40,000.00.[10]
Neither was there any prior notice or publication pertaining to
contracts entered into by public and private respondents for the
construction of stalls to be awarded to private respondents that the
same can be availed of by anybody willing to deposit P40,000.00.[11]
In this petition, petitioner prays for the reversal of the

decision of the Court of Appeals (CA) and a declaration of the
unconstitutionality, illegality and nullity of the questioned
resolutions/ordinances and lease contracts entered into by the
public and private respondents; for the declaration of the
illegality of the award of the stalls during the pendency of this
action and for the re-raffling and award of the stalls in a

manner that is fair and just to all interested applicants; [12] for
the issuance of an order to the local government to admit any
and all interested persons who can deposit the amount
of P40,000 for a stall and to order a re-raffling for the award of
the stalls to the winners of the re-raffle; for the nullification of
the award of attorneys fees to private respondents on the
ground that it was erroneous and unmeritorious; and for the
award of damages in favor of petitioner in the form of attorneys
fees.[13]
At the outset, we must point out that the issue of the
constitutionality of the questioned resolutions was never ruled
upon by both the RTC and the CA.
It appears that on May 21, 1990, both parties agreed [14] to
await the decision in CA G.R. SP No. 20424, [15] which involved
similar facts, issues and parties. The RTC, consequently,
deferred the resolution of the pending petition. The appellate
court eventually rendered its decision in that case finding that
the petitioners were not entitled to the declaratory relief prayed
for as they had no legal interest in the controversy. Upon
elevation to the Supreme Court as UDK Case No. 9948, the
petition for
review
on certiorari was denied for
insufficient in form and substance. [16]
being
The RTC, after receipt of the entry of the SC judgment,

[17]
dismissed the pending petition on November 26, 1990. It
adopted the ruling in CA G.R. SP No. 20424:

xxxxxxxxx
We find petitioners aforesaid submission utterly devoid of merit. It
is, to say the least, questionable whether or not a special civil
action for declaratory relief can be filed in relation to a contract by
persons who are not parties thereto. Under Sec. 1 of Rule 64 of
the Rules of Court, any person interested under a deed, will,
contract, or other written instruments may bring an action to
determine any question of the contract, or validly arising under the
instrument for a declaratory (sic) of his rights or duties thereunder.
Since contracts take effect only between the parties (Art. 1311) it is
quite plain that one who is not a party to a contract can not have
the interest in it that the rule requires as a basis for declaratory
reliefs (PLUM vs. Santos, 45 SCRA 147).
Following this ruling, the petitioners were not parties in the
agreement for the award of the market stalls by the public
respondents, in the public market of Panabo, Davao, and since the
petitioners were not parties to the award of the market stalls and
whose rights are never affected by merely stating that they are
taxpayers, they have no legal interest in the controversy and they
are not, therefore, entitled to bring an action for declaratory relief.
[18]
WHEREFORE, the petition of the petitioners as taxpayers

being without merit and not in consonance with law, is hereby
ordered DISMISSED.
As to the counterclaim for damages, the same not having

been actually and fully proven, the Court gives no award as to the
same. It is not amiss to state here that the petitioners agreed to be
bound by the outcome of Special Civil Case No. 89-10.
However, for unnecessarily dragging into Court the fiftyseven (57) private respondents who are bonafide businessmen and
stall holders in the public market of Panabo, it is fitting and proper

for the petitioners to be ordered payment of attorneys fees.
Accordingly, the herein petitioners are ordered to pay ONE

THOUSAND (P1,000.00) PESOS EACH to the 57 private
respondents, as attorneys fees, jointly and severally, and for them
to pay the costs of this suit.
SO ORDERED.[19]
From this adverse decision, petitioner again appealed to

the Court of Appeals in CA-G.R. CV No. 35082 which is now
before us for review.
The appellate court, yet again, affirmed the RTC decision
and held that:
Res judicata does not set in a case dismissed for lack of
capacity to sue, because there has been no determination on the
merits. Neither does the law of the case apply. However, the court a
quo took judicial notice of the fact that petitioners agreed to be
bound by the outcome of Special Civil Case No. 89-10. Allegans
contraria non est audiendus. (He is not to be heard who alleges
things contradictory to each other.) It must be here observed that
petitioners-appellants were the ones who manifested that it would
be practical to await the decision of the Supreme Court in their
petition for certiorari, for after all the facts, circumstances and
issues in that case, are exactly the same as in the case that is here
appealed. Granting that they may evade such assumption, a careful
evaluation of the case would lead Us to the same conclusion: that
the case for declaratory relief is dismissible. As enumerated by
Justice Regalado in his Remedial Law Compendium, the requisites
of an action for declaratory relief are:
(a) The subject matter of the controversy must be a deed,
will, contract or other written instrument, statute, executive order or
regulation, or ordinance;
(b) The terms of said documents and the validity thereof

are doubtful and require judicial construction;
(c)
question;
There must have been no breach of the documents in
(d) There must be an actual justiciable controversy or the

ripening seeds of one between persons whose interests are
adverse;
(e) The issue must be ripe for judicial determination; and
(f) Adequate relief is not available through other means or
other forms of action or proceeding.
In Tolentino vs. Board of Accountancy, et al, 90 Phil. 83, 88,
the Supreme Court ratiocinated the requisites of justiciability of an
action for declaratory relief by saying that the court must be
satisfied that an actual controversy, or the ripening seeds of one,
exists between parties, all of whom are sui juris and before the
court, and that the declaration sought will be a practical help in
ending the controversy.
The petition must show an active antagonistic assertion of a
legal right on one side and a denial thereof on the other concerning
a real, and not a mere theoretical question or issue. The question is
whether the facts alleged a substantial controversy between parties
having adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory relief. In GSISEA and
GSISSU vs. Hon. Alvendia etc. and GSIS, 108 Phil. 505, the
Supreme Court ruled a declaratory relief improper or unnecessary
when it appears to be a moot case, since it seeks to get a judgment
on a pretended controversy, when in reality there is none.
In Kawasaki Port Service Corporation vs. Amores, 199 SCRA 230,
citing Dy Poco vs. Commissioner of Immigration, et al., 16 SCRA
618, the rule was stated: where a declaratory judgment as to a
disputed fact would be determinative of issues rather than a
construction of definite stated rights, statuses and other relations,
commonly expressed in a written instrument, the case is not one for
declaratory judgment.
Indeed, in its true light, the present petition for declaratory
relief seems to be no more than a request for an advisory opinion to
which courts in this and other jurisdiction have cast a definite
aversion. The ordinances being assailed are appropriation
ordinances. The passage of the ordinances were pursuant to the
public purpose of constructing market stalls. For the exercise of

judicial review, the governmental act being challenged must have
had an adverse effect on the person challenging it, and the person
challenging the act, must have standing to challenge, i.e., in the
categorical and succinct language of Justice Laurel, he must have
a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement.
Standing is a special concern in constitutional law because in some
cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by
concerned citizens, taxpayers or voters who actually sue in the
public interest. Hence the question in standing is whether such
parties have alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court largely
depends for illumination of difficult constitutional questions.
A careful analysis of the records of the case at bar would
disclose that petitioners-appellants have suffered no wrong under
the terms of the ordinances being assailed and, naturally need no
relief in the form they now seek to obtain. Judicial exercise cannot
be exercised in vacuo. The policy of the courts is to avoid ruling on
a constitutional question 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. The
issue is not the ordinances themselves, but the award of the market
stalls to the private respondents on the strength of the contracts
individually executed by them with Mayor Cafe. To reiterate, a
person who is not a party to a contract cannot file a petition for
declaratory relief and seek judicial interpretation of such contract
(Atlas Consolidated Mining Corp. vs. Court of Appeals, 182 SCRA
166). Not having established their locus standi, we see no error
committed by the court a quo warranting reversal of the appealed
decision.
With the foregoing, the assailed Decision of Branch 4,
Regional Trial Court of Panabo Davao dated 26 November 1990 in
Sp. Civil Action No. 89-1 is hereby AFFIRMED.
SO ORDERED.[20]
Thus, both the RTC and the CA dismissed the case on

the ground of petitioners lack of legal standing and the
parties agreement to be bound by the decision in CA G.R.

SP. No. 20424.
The issues to be resolved are the following:
(1) whether the parties were bound by the outcome in CA
G.R. SP. No. 20424;
(2) whether petitioner had the legal standing to bring the
petition for declaratory relief;
(3)
whether
Resolution
Nos.
and
49
were
unconstitutional; and
(4) whether petitioner should be held liable for damages.
LOCUS STANDI AND THE
CONSTITUTIONALITY ISSUE
We will first consider the second issue. The petition for

declaratory relief challenged the constitutionality of the
subject resolutions. There is an unbending rule that courts
will not assume jurisdiction over a constitutional question
unless the following requisites are satisfied: (1) there must
be an actual case calling for the exercise of judicial review;
(2) the question before the Court must be ripe for
adjudication; (3) the person challenging the validity of the
act must have standing to do so; (4) the question of
constitutionality must have been raised at the earliest
opportunity, and (5) the issue of constitutionality must be

the very lis mota of the case.[21]
Legal standing or locus standi is a partys personal and
substantial interest in a case such that he has sustained or
will sustain direct injury as a result of the governmental act
being challenged. It calls for more than just a generalized
grievance. The term interest means a material interest, an
interest in issue affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental
interest.[22] Unless a persons constitutional rights are adversely
affected by the statute or ordinance, he has no legal standing.
The CA held that petitioner had no standing to

challenge
the
two
resolutions/ordinances
because
he
suffered no wrong under their terms. It also concluded that

the issue (was) not the ordinances themselves but the award
of the market stalls to the private respondents on the
strength of the contracts individually executed by them with
Mayor Cafe. Consequently, it ruled that petitioner, who was
not a party to the lease contracts, had no standing to file the
petition for declaratory relief and seek judicial interpretation
of the agreements.
We do not agree. Petitioner brought the petition in his

capacity as taxpayer of the Municipality of Panabo, Davao del
Norte[23]and not in his personal capacity. He was questioning
the official acts of the public respondents in passing the
ordinances and entering into the lease contracts with private
respondents. A taxpayer need not be a party to the contract to
challenge
its
validity.[24] Atlas
Consolidated
Mining
&
Development Corporation v. Court of Appeals [25] cited by the CA

does not apply because it involved contracts between two
private parties.
Parties suing as taxpayers must specifically prove
sufficient interest in preventing the illegal expenditure of
money raised by taxation.[26] The expenditure of public funds
by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such
funds.[27] The resolutions being assailed were appropriations

ordinances. Petitioner alleged that these ordinances were
passed for the business, occupation, enjoyment and benefit of
private respondents[28] (that is, allegedly for the private benefit
of respondents) because even before they were passed,
respondent Mayor Cafe and private respondents had already
entered into lease contracts for the construction and award of
the
market
stalls.[29] Private
respondents
admitted
they
deposited P40,000 each with the municipal treasurer, which

amounts were made available to the municipality during the
construction of the stalls. The deposits, however, were needed
to ensure the speedy completion of the stalls after the public
market was gutted by a series of fires. [30] Thus, the award of
the stalls was necessarily limited only to those who advanced
their personal funds for their construction. [31]
Petitioner did not seasonably allege his interest in

preventing the illegal expenditure of public funds or the
specific injury to him as a result of the enforcement of the
questioned resolutions and contracts. It was only in the
Remark to Comment he filed in this Court did he first assert
that he (was) willing to engage in business and (was) interested
to occupy a market stall.[32] Such claim was obviously an
afterthought.
Be that as it may, we have on several occasions relaxed

the application of these rules on legal standing:
In not a few cases, the Court has liberalized the locus standi
requirement when a petition raises an issue of transcendental
significance or paramount importance to the people. Recently, after
holding that the IBP had no locus standi to bring the suit, the Court
in IBP v. Zamora nevertheless entertained the Petition therein. It
noted that "the IBP has advanced constitutional issues which

deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents."[33]
oOo
Objections to a taxpayer's suit for lack of sufficient

personality, standing or interest are procedural matters.
Considering the importance to the public of a suit assailing the
constitutionality of a tax law, and in keeping with the Court's duty,
specially explicated in the 1987 Constitution, to determine whether
or not the other branches of the Government have kept themselves
within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Supreme Court may
brush aside technicalities of procedure and take cognizance of the
suit.[34]
oOo
There being no doctrinal definition of transcendental

importance, the following determinants formulated by former
Supreme Court Justice Florentino P. Feliciano are instructive: (1)
the character of the funds or other assets involved in the case; (2)
the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in raising the
questions being raised.[35]
But, even if we disregard petitioners lack of legal

standing,
this
petition
must
still
fail.
The
subject
resolutions/ordinances appropriated a total of P2,280,000 for

the construction of the public market stalls. Petitioner alleges
that these ordinances were discriminatory because, even prior
to their enactment, a decision had already been made to award
the
market
stalls
to
the
private
respondents
who
deposited P40,000 each and who were either friends or

relatives of the public respondents. Petitioner asserts that
there (was) no publication or invitation to the public that this
contract (was) available to all who (were) interested to own a
stall and (were) willing to deposit P40,000.[36] Respondents,
however, counter that the public respondents act of entering
into this agreement was authorized by the Sangguniang
Bayan of Panabo per Resolution No. 180 dated October 10,
1988[37] and that all the people interested were invited to
participate in investing their savings.[38]
We note that the foregoing was a disputed fact which the
courts below did not resolve because the case was dismissed
on the basis of petitioners lack of legal standing. Nevertheless,
petitioner
failed
to
prove
the
subject
ordinances
and
agreements to be discriminatory. Considering that he was

asking this Court to nullify the acts of the local political
department of Panabo, Davao del Norte, he should have clearly
established that such ordinances operated unfairly against
those who were not notified and who were thus not given the
opportunity to make their deposits. His unsubstantiated

allegation that the public was not notified did not suffice.
Furthermore, there was the time-honored presumption of
regularity of official duty, absent any showing to the contrary.
And this is not to mention that:
[39]
The policy of the courts is to avoid ruling on constitutional

questions and to presume that the acts of the political departments
are valid, absent a clear and unmistakable showing to the contrary.
To doubt is to sustain. This presumption is based on the doctrine of
separation of powers. This means that the measure had first been
carefully studied by the legislative and executive departments and
found to be in accord with the Constitution before it was finally
enacted and approved.[40]
Therefore, since petitioner had no locus standi to

question the ordinances, there is no need for us to discuss the
constitutionality of said enactments.
WERE THE PARTIES BOUND BY THE
OUTCOME IN CA G.R. SP. NO. 20424?
Adverting to the first issue, we observe that petitioner

was the one who wanted the parties to await the decision of
the Supreme Court in UDK Case No. 9948 since the facts and
issues in that case were similar to this. Petitioner, having
expressly agreed to be bound by our decision in the
aforementioned case, should be reined in by the dismissal

order we issued, now final and executory. In addition to the
fact that nothing prohibits parties from committing to be
bound by the results of another case, courts may take judicial
notice of a judgment in another case as long as the parties give
their consent or do not object.[41] As opined by Justice Edgardo

L. Paras:
A court will take judicial notice of its own acts and records in
the same case, of facts established in prior proceedings in the
same case, of the authenticity of its own records of another case
between the same parties, of the files of related cases in the same
court, and of public records on file in the same court. In addition,
judicial notice will be taken of the record, pleadings or judgment of
a case in another court between the same parties or involving one
of the same parties, as well as of the record of another case
between different parties in the same court. [42]
DAMAGES
Finally, on the issue of damages, petitioner asserts that he

impleaded the 57 respondents in good faith since the award of
the stalls to them was made during the pendency of the
action.[43] Private respondents refute this assertion and argue
that petitioner filed this action in bad faith and with the
intention of harassing them inasmuch as he had already filed
CA G.R. SP. No. 20424 even before then. [44] The RTC, affirmed
by the CA, held that petitioner should pay attorneys fees for
unnecessarily dragging into Court the 57 private respondents
who (were) bonafide businessmen and stall holders in the

public market of Panabo.[45]
We do not agree that petitioner should be held liable for
damages. It is not sound public policy to put a premium on
the right to litigate where such right is exercised in good faith,
albeit erroneously.[46] The alleged bad faith of petitioner was
never established. The special circumstances in Article 2208 of
the Civil Code justifying the award of attorneys fees are not
present in this case.
WHEREFORE, the decision of the Court of Appeals in
CA-G.R.
CV
No.
35082
is
hereby AFFIRMED with
the MODIFICATIONthat the award of attorney's fees to private

respondents is deleted.
Costs against petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice
W E C O N C U R:
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman
ANGELINA SANDOVAL-GUTIERREZ CONCHITA CARPIO MORALES

Associate Justice
Associate Justice
CANCIO C. GARCIA
Associate Justice
ATTESTATION
I attest that the conclusions in the above decision were

reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution and the

Division Chairmans Attestation, it is hereby certified that the
conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Court.
HILARIO G. DAVIDE, JR.

Chief Justice
[1]
Penned by Associate Justice Romeo A. Brawner and concurred in by Associate Justices Quirino D. Abad
Santos Jr. and Andres B. Reyes, Jr. of the Third Division.
[2]
Rollo, p. 19.
[3]
Records, p. 31.
[4]
Jumamils co-petitioners in the RTC and CA were Jose A. Magnanao and Efren Bendijo. However,
Jumamil alone elevated this petition to this Court.
[5]
Rollo, p. 12.
[6]
Id.
[7]
Id.
[8]
Respondents Memorandum, Rollo, p. 43.
[9]
Rollo, p. 15.
[10]
Petitioners Petition, Rollo, p. 6.
[11]
Petitioners Memorandum, Rollo, p. 67.
[12]
Supra at note 10, p. 9.
[13]
[14]
RTC Decision, Records, p. 29 and CA Decision, Rollo, p. 16.
[15]
An earlier case involving the same facts and parties was filed in Branch 4, RTC, Panabo, Davao del
Norte (then presided by a different judge) for Declaratory Relief, Annulment of Award or
Compromise Agreement. In that case, the petitioners (including the petitioner in the present case)
directly attacked the validity of the contracts of lease entered into by public and private
respondents. It was dismissed by the trial court. On appeal as CA G.R. SP No. 20424, the Court of
Appeals affirmed the RTC decision. Petitioner, thereafter, sought the reversal of the appellate
courts decision via petition for review in the Supreme Court as UDK Case No. 9948. The petition
was denied by the First Division on June 11, 1990 for being insufficient in form and substance.
[16]
RTC Decision, Records, p. 29.
[17]
Supra at note 16.
[18]
[19]
Id., pp. 30-31.
[20]
See note 2.
[21]
Mirasol v. Court of Appeals, G.R. No. 128448, 1 February 2001, 351 SCRA 44, 5354; Board of Optometry v. Hon. Colet, 328 Phil. 1187, 1205 (1996),
citing Philippine Constitution Association v. Enriquez and companion cases, 235
SCRA 506, 518-519 (1994); Joya v. PCGG, 225 SCRA 568, 575
(1993); Macasiano v. National Housing Authority, G.R. No. 107921, 1 July 1993,
224 SCRA 236, 242; Fernandez v. Torres, 215 SCRA 489, 493 (1992); Santos v.
Northwest Orient Airlines, 210 SCRA 256, 261 (1992); Garcia v. Executive
Secretary, 204 SCRA 516, 522 (1991).
[22]
Velarde v. Social Justice Society, id.; Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632633 (2000); Joya v. PCGG, supra at note 21 at p. 576.
[23]
Petitioners Memorandum, Rollo, p. 66; CA Decision, Rollo, p. 12.
[24]
See City Council of Cebu City v. Cuizon, 150-C Phil. 116, 129-130 (1972).
[25]
G.R. No. L-54305, 14 February 1990, 182 SCRA 166, citing United Central & Cellulose Labor
Association (PLUM) v. Santos, 4 SCRA 235, 241 (1962).
[26]
Velarde v. Social Justice Society, supra at note 22, citing Del Mar v. Philippine Amusement and Gaming
Corporation, 346 SCRA 485, 29 November 2000; Francisco, Jr. v. Nagmamalasakit na mga
Manggagawang Pilipino, Inc., G.R. No. 160261, 10 November 2003, 415 SCRA 44, 136-137.
[27]
Gonzales v. Hon. Narvasa, 392 Phil. 518, 526 (2000), citing Sanidad v. Commission on Elections, 73
SCRA 333 (1976); Gascon v. Hon. Arroyo, G.R. No. 78389, 16 October 1989, 178 SCRA 582,
586, citing Province of Tayabas v. Perez, 54 Phil. 257; Pascual v. Secretary of Public Works, et al.,
110 Phil. 331; Gonzales v. Hechanova, 118 Phil. 1065, 1071 (1963); Philippine Constitution
Association, Inc., et al. v. Gimenez, et al., L-23326, 18 December 1965, 15 SCRA 479; Pelaez v.
Auditor General, 122 Phil. 965 (1965); Demetria v. Hon. Alba, G.R. No. 71977, February 27,
1987, 148 SCRA 208, 213, citing Pascual v. Secretary of Public Works, et al. and 11 Am. Jur. 761.
[28]
Supra at note 10.
[29]
Respondents Comment, Rollo, p. 42.
[30]
[31]
[32]
Rollo, p. 52.
[33]
Velarde v. Social Justice Society, supra at note 22, citations omitted.
[34]
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989,
176 SCRA 240, 251, citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan, G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.
[35]
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at

citing Kilosbayan, Incorporated v. Guingona, Jr., 232 SCRA 110 (1994).
[36]
[37]
[38]
Id., p. 28.
[39]
Rule 131, Section 3 (m), Rules of Court.
[40]
Mirasol v. Court of Appeals, supra at note 21 at p. 54; Board of Optometry v. Hon. Colet, supra at note
21; Macasiano v. National Housing Authority, supra at note 21.
[41]
Landbank of the Philippines v. Spouses Banal, G.R. No. 143276, 20 July 2004,
citing People v. Hernandez, 328 Phil. 1123, 1146 (1996), in turn citing Tabuena v.
Court of Appeals, G.R. No. 85423, 6 May 1991, 196 SCRA 650 and U.S. v.
Claveria, 29 Phil. 527 (1969); Occidental Land Transportation Company, Inc. v.
Court of Appeals, G.R. No. 96721, 19 March 1993, 220 SCRA 167, 175.
[42]
Asian Transmission Corporation v. Canlubang Sugar Estates, G.R. No. 142383, 29 August 2003, 410
SCRA 202, 218, citing Republic v. Court of Appeals, 343 Phil. 428 (1997).
[43]
[44]
Brief for Private Respondents-Appellees, Records, pp. 55-59.
[45]
Supra at note 17, Records, p. 31.
[46]
Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority, G.R. No.
156273, 15 October 2003, 413 SCRA 502, 515, citing Mirasol v. De la Cruz, G.R. No. L-32552,
31 July 1978, 84 SCRA 337; Spouses Estanislao, Jr. v. Court of Appeals, 414 Phil. 509, 521
(2001), citing "J" Marketing Corp. v. Sia, Jr., 349 Phil. 513, 518-519 (1998).
IBP V ZAMORA
note
30,
EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.

RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR
B.
AGLIPAY,
and
GEN.
ANGELO
REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the Philippine National
Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the purpose
of crime prevention and suppression. The Secretary of National Defense, the
Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the
PNP and the Secretary of the Interior and Local Government were tasked to
execute and implement the said order. In compliance with the presidential
mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay,
formulated Letter of Instruction 02/2000 [1] (the LOI) which detailed the manner by
which the joint visibility patrols, called Task Force Tulungan, would be conducted.
[2]
Task Force Tulungan was placed under the leadership of the Police Chief of
Metro Manila.
Subsequently, the President confirmed his previous directive on the
deployment of the Marines in a Memorandum, dated 24 January 2000,
addressed to the Chief of Staff of the AFP and the PNP Chief. [3] In the
Memorandum, the President expressed his desire to improve the peace and
order situation in Metro Manila through a more effective crime prevention
program including increased police patrols. [4] The President further stated that to
heighten police visibility in the metropolis, augmentation from the AFP is
necessary.[5] Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff and
PNP Chief to coordinate with each other for the proper deployment and utilization
of the Marines to assist the PNP in preventing or suppressing criminal or lawless

violence.[6] Finally, the President declared that the services of the Marines in the
anti-crime campaign are merely temporary in nature and for a reasonable period
only, until such time when the situation shall have improved. [7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility
patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP
NCRPO and the Philippine Marines partnership in the conduct of
visibility patrols in Metro Manila for the suppression of crime prevention
and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by
ordinary criminals but also by organized syndicates whose members
include active and former police/military personnel whose training, skill,
discipline and firepower prove well-above the present capability of the
local police alone to handle. The deployment of a joint PNP NCRPOPhilippine Marines in the conduct of police visibility patrol in urban areas
will reduce the incidence of crimes specially those perpetrated by active
or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free,
through a sustained street patrolling to minimize or eradicate all forms
of high-profile crimes especially those perpetrated by organized crime
syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO
[National Capital Regional Police Office] and the Philippine Marines to
curb criminality in Metro Manila and to preserve the internal security of
the state against insurgents and other serious threat to national security,
although the primary responsibility over Internal Security Operations still

rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all
forms of high-profile crimes perpetrated by organized crime syndicates
operating in Metro Manila. This concept requires the military and police
to work cohesively and unify efforts to ensure a focused, effective and
holistic approach in addressing crime prevention. Along this line, the
role of the military and police aside from neutralizing crime syndicates is
to bring a wholesome atmosphere wherein delivery of basic services to
the people and development is achieved. Hand-in-hand with this joint
NCRPO-Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional
Task Force TULUNGAN shall be organized to provide the mechanism,
structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle,
North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall,
Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO

MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF
THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION
BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT
(LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION
5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO

RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS
OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE

ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP in
law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated
25 January 2000, required the Solicitor General to file his Comment on the
petition. On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has
no legal standing; that the question of deployment of the Marines is not proper for
judicial scrutiny since the same involves a political question; that the organization
and conduct of police visibility patrols, which feature the team-up of one police
officer and one Philippine Marine soldier, does not violate the civilian supremacy
clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner
has legal standing; (2) Whether or not the Presidents factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility
patrols violates the constitutional provisions on civilian supremacy over the
military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the
requisites of standing to raise the issues in the petition. Second, the President
did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction nor did he commit a violation of the civilian supremacy clause of the
Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can
exercise its power of judicial review only if the following requisites are complied
with, namely: (1) the existence of an actual and appropriate case; (2) a personal
and substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this
case.
Legal standing or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is being challenged. [13] The
term interest means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question involved, or a mere
incidental interest.[14] The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions. [15]
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by other groups and the
whole citizenry. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of
the Marines. It should also be noted that the interest of the National President of
the IBP who signed the petition, is his alone, absent a formal board resolution
authorizing him to file the present action. To be sure, members of the BAR, those
in the judiciary included, have varying opinions on the issue. Moreover, the IBP,
assuming that it has duly authorized the National President to file the petition,
has not shown any specific injury which it has suffered or may suffer by virtue of
the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the
operation of the joint visibility patrols. Neither is it alleged that any of its members
has been arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed injury not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of standing.Since petitioner
has not successfully established a direct and personal injury as a consequence
of the questioned act, it does not possess the personality to assail the validity of
the deployment of the Marines. This Court, however, does not categorically rule
that the IBP has absolutely no standing to raise constitutional issues now or in
the future. The IBP must, by way of allegations and proof, satisfy this Court that it
has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of
legal standing when paramount interest is involved. [16] In not a few cases, the
Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people.
[17]
Thus, when the issues raised are of paramount importance to the public, the
Court may brush aside technicalities of procedure. [18] In this case, a reading of the
petition shows that the IBP has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy raised in the petition almost
certainly will not go away. It will stare us in the face again.It, therefore, behooves
the Court to relax the rules on standing and to resolve the issue now, rather than
later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination
of the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the
deployment of the military personnel falls under the Commander-in-Chief powers
of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for
the calling of the Marines under the aforestated provision. According to the IBP,
no emergency exists that would justify the need for the calling of the military to
assist the police force. It contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP prays that this Court
review the sufficiency of the factual basis for said troop [Marine] deployment. [19]
The Solicitor General, on the other hand, contends that the issue pertaining
to the necessity of calling the armed forces is not proper for judicial scrutiny since
it involves a political question and the resolution of factual issues which are
beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the
Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare. [20] For
one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In
the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents
powers as protector of the peace. [Rossiter, The American
Presidency]. The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats
to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the
Presidents exercising as Commander-in-Chief powers short of the
calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is
not susceptible to review by the judiciary because it involves a political question,
and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter

which is appropriate for court review.[22] It pertains to issues which are inherently
susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are political questions. The reason is that
political questions are concerned with issues dependent upon the wisdom, not
the legality, of a particular act or measure being assailed. Moreover, the political
question being a function of the separation of powers, the courts will not normally
interfere with the workings of another co-equal branch unless the case shows a
clear need for the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of government. Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be
a political question. In the classic formulation of Justice Brennan in Baker v. Carr,
[24]
[p]rominent on the surface of any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarassment from multifarious pronouncements by various
departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing
that (T)he Judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. Judicial power includes the duty of
the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. [25] Under this
definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations,
the issue of whether the prescribed qualifications or conditions have been met or
the limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court. [27] When political questions are involved,
the Constitution limits the determination as to whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned. [28]
By grave abuse of discretion is meant simply capricious or whimsical

exercise of judgment that is patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all
in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. [29] Under this definition, a court
is without power to directly decide matters over which full discretionary authority
has been delegated. But while this Court has no power to substitute its judgment
for that of Congress or of the President, it may look into the question of whether
such exercise has been made in grave abuse of discretion. [30] A showing that
plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may
give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the Presidents wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Courts duty of purposeful
hesitation[32] before declaring an act of another branch as unconstitutional, only
where such grave abuse of discretion is clearly shown shall the Court interfere
with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine
the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-inChief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of

the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any
part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis
for the exercise of the calling out power is also implied and further reinforced in
the rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the

suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or

suspension and the Court may review the sufficiency of the factual basis
thereof.However, there is no such equivalent provision dealing with the
revocation or review of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category from the power to
declare martial law and the power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and review without
any qualification. Expressio unius est exclusio alterius. Where the terms are
expressly limited to certain matters, it may not, by interpretation or construction,
be extended to other matters.[33] That the intent of the Constitution is exactly what
its letter says, i.e., that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can
call out such Armed Forces as may be necessary to suppress lawless
violence; then he can suspend the privilege of the writ of habeas
corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend
the privilege of the writ of habeas corpus, his judgment is subject to
review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed Forces, when he
says it is necessary, it is my opinion that his judgment cannot be
reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent
danger, the matter can be handled by the first sentence: The President
may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. So we feel that that is sufficient for handling
imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is
imminent danger, the matter can be handled by the First Sentence: The
President....may call out such Armed Forces to prevent or suppress
lawless violence, invasion or rebellion. So we feel that that is sufficient
for handling imminent danger, of invasion or rebellion, instead of
imposing martial law or suspending the writ of habeas corpus, he must
necessarily have to call the Armed Forces of the Philippines as their

Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the
legislature nor is it subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which involve
the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this
Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of
the power to suspend the privilege of the writ of habeas corpus or to impose
martial law, two conditions must concur: (1) there must be an actual invasion or
rebellion and, (2) public safety must require it. These conditions are not required
in the case of the power to call out the armed forces. The only criterion is that
whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion." The implication is
that the President is given full discretion and wide latitude in the exercise of the
power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot undertake an
independent investigation beyond the pleadings. The factual necessity of calling
out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of
several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon
which the President might decide that there is a need to call out the armed forces
may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be classified as
highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of
property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect
at all. Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected
to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show
that the exercise of such discretion was gravely abused, the Presidents exercise
of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for
calling the armed forces. In his Memorandum, he categorically asserted that,
[V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings
continue to occur in Metro Manila...[35] We do not doubt the veracity of the
Presidents assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls, public utilities, and other
public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual
basis to call for military aid in law enforcement and in the exercise of this
constitutional power.
The deployment of the Marines does not violate the civilian supremacy
clause nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify
the calling of the Marines, the IBP asserts that by the deployment of the Marines,
the civilian task of law enforcement is militarized in violation of Section 3, Article
II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of
the civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation
of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the provisions
of the LOI itself, which sufficiently provides the metes and bounds of the Marines
authority. It is noteworthy that the local police forces are the ones in charge of the
visibility patrols at all times, the real authority belonging to the PNP. In fact, the
Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines
joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures. [38] It is their responsibility to direct
and manage the deployment of the Marines. [39] It is, likewise, their duty to provide
the necessary equipment to the Marines and render logistical support to these
soldiers.[40] In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the

Marines to assist the PNP does not unmake the civilian character of the police
force. Neither does it amount to an insidious incursion of the military in the task of
law enforcement in violation of Section 5(4), Article XVI of the Constitution. [41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of
Staff of the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision. The
real authority in these operations, as stated in the LOI, is lodged with the head of
a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the
same. Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it
is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally civil functions. As correctly pointed out by
the Solicitor General, some of the multifarious activities wherein military aid has
been rendered, exemplifying the activities that bring both the civilian and the
military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]

15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a

systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned. [59] What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards
the use of military force for domestic purposes has persisted, [60] and whose
Constitution, unlike ours, does not expressly provide for the power to call, the use
of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses any part
of the Army or the Air Force asposse comitatus or otherwise to execute
the laws shall be fined not more than $10,000 or imprisoned not more
than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the
use of military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was
regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404433 (1986), which discusses the four divergent standards for assessing acceptable involvement
of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH:
PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we

take it to mean that military involvement, even when not expressly
authorized by the Constitution or a statute, does not violate the Posse
Comitatus Act unless it actually regulates, forbids or compels some

conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case
to determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or
direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These
soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And last,
these soldiers apply no coercive force. The materials or equipment issued to them, as
shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory military
power, the deployment of a handful of Philippine Marines constitutes no impermissible use
of military power for civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed
forces are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, petitioner
IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the Presidents determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January,
2000, not a single citizen has complained that his political or civil rights have
been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived.Freedom and democracy will be in full bloom only
when people feel secure in their homes and in the streets, not when the shadows
of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.

Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J.:
If the case at bar is significant, it is because of the government attempt to

foist the political question doctrine to shield an executive act done in the
exercise of the commander-in-chief powers from judicial scrutiny. If the attempt
succeeded, it would have diminished the power of judicial review and
weakened the checking authority of this Court over the Chief Executive
when he exercises his commander-in-chief powers. The attempt should
remind us of the tragedy that befell the country when this Court sought
refuge in the political question doctrine and forfeited its most important
role as protector of the civil and political rights of our people. The ongoing
conflict in Mindanao may worsen and can force the Chief Executive to
resort to the use of his greater commander-in-chief powers, hence, this
Court should be extra cautious in assaying similar attempts. A laid back
posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded
its jurisdiction precisely to stop any act constituting xxx grave abuse of
jurisdiction xxx on the part of any branch or instrumentality of the
Government.1
The importance of the issue at bar includes this humble separate
opinion. We can best perceive the different intersecting dimensions of the
political question doctrine by viewing them from the broader canvass of
history. Political questions are defined as those questions which under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative
or executive branch of government. 2 They have two aspects: (1) those matters
that are to be exercised by the people in their primary political capacity and (2)
matters which have been specifically delegated to some other department or
particular office of the government, with discretionary power to act. 3 The exercise
of the discretionary power of the legislative or executive branch of government
was often the area where the Court had to wrestle with the political question
doctrine.4
A brief review of some of our case law will thus give us a sharper perspective
of the political question doctrine. This question confronted the Court as early as
1905 in the case of Barcelon v. Baker.5 The Governor-General of the Philippine
Islands, pursuant to a resolution of the Philippine Commission, suspended the
privilege of the writ of habeas corpus in Cavite and Batangas based on a finding
of open insurrection in said provinces. Felix Barcelon, who was detained by
constabulary officers in Batangas, filed a petition for the issuance of a writ of
habeas corpus alleging that there was no open insurrection in Batangas. The
issue to resolve was whether or not the judicial department may investigate the
facts upon which the legislative (the Philippine Commission) and executive (the
Governor-General) branches of government acted in suspending the privilege of
the writ.
The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department.6 Surveying American law and jurisprudence, it
held that whenever a statute gives discretionary power to any person, to be
exercised by him upon his own opinion of certain facts, the statute constitutes
him the sole judge of the existence of those facts.7 Since the Philippine Bill of
1902 empowered the Philippine Commission and the Governor-General to
suspend the privilege of the writ of habeas corpus, this power
is exclusively within the discretion of the legislative and executive branches of
government. The exercise of this discretion is conclusive upon the courts. 8
The Court further held that once a determination is made by the executive
and legislative departments that the conditions justifying the assailed acts exists,
it will presume that the conditions continue until the same authority decide that
they no longer exist.9 It adopted the rationale that the executive branch, thru its
civil and military branches, are better situated to obtain information about peace
and order from every corner of the nation, in contrast with the judicial
department, with its very limited machinery.10 The seed of the political question
doctrine was thus planted in Philippine soil.
The doctrine barring judicial review because of the political question
doctrine was next applied to the internal affairs of the legislature. The Court
refused to interfere in the legislative exercise of disciplinary power over its own
members. In the 1924 case of Alejandrino v. Quezon,11 Alejandrino, who was
appointed Senator by the Governor-General, was declared by Senate Resolution
as guilty of disorderly conduct for assaulting another Senator in the course of a
debate, and was suspended from office for one year. Senator Alejandrino filed a
petition for mandamus and injunction to compel the Senate to reinstate him. The
Court held that under the Jones Law, the power of the Senate to punish its
members for disorderly behavior does not authorize it to suspend an appointive
member from the exercise of his office. While the Court found that the
suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the
Philippine Senate take any particular action. [T]he Philippine Legislature or any
branch thereof cannot be directly controlled in the exercise of their legislative
powers by any judicial process."12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths of
office by a Senate resolution repaired to this Court to compel their colleagues to
allow them to occupy their seats contending that only the Electoral Tribunal had
jurisdiction over contests relating to their election, returns and
qualifications. Again, the Court refused to intervene citing Alejandrino and

affirmed the inherent right of the legislature to determine who shall be admitted to
its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to
the Constitution. If their votes had been counted, the affirmative votes in favor of
the proposed amendment would have been short of the necessary three-fourths
vote in either House of Congress to pass the amendment. The amendment was
eventually submitted to the people for ratification. The Court declined to intervene
and held that a proposal to amend the Constitution is a highly political function
performed by Congress in its sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen,
assailed the legality of his detention ordered by the Senate for his refusal to
answer questions put to him by members of one of its investigating
committees. This Court refused to order his release holding that the process by
which a contumacious witness is dealt with by the legislature is a necessary
concomitant of the legislative process and the legislature's exercise of its
discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional
line. Congressman Sergio Osmena, Jr. was suspended by the House of
Representatives for serious disorderly behavior for making a privilege speech
imputing "malicious charges" against the President of the Philippines. Osmena,
Jr. invoked the power of review of this Court but the Court once more did not
interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be
sure, the Court did not always stay its hand whenever the doctrine is invoked. In
the 1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was
deposed and replaced, questioned his successor's title claiming that the latter
had been elected without a quorum. The petition was initially dismissed on the
ground that the selection of Senate President was an internal matter and not
subject to judicial review.19 On reconsideration, however, the Court ruled that it
could assume jurisdiction over the controversy in light of subsequent events
justifying intervention among which was the existence of a quorum. 20 Though the
petition was ultimately dismissed, the Court declared respondent Cuenco as the
legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over
a dispute involving the formation and composition of the Senate Electoral
Tribunal. It rejected the Solicitor General's claim that the dispute involved a
political question. Instead, it declared that the Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral Tribunal
and the exercise of its power thereon is subject to constitutional limitations which
are mandatory in nature.22 It held that under the Constitution, the membership of
the Senate Electoral Tribunal was designed to insure the exercise of judicial
impartiality in the disposition of election contests affecting members of the

lawmaking body.23 The Court then nullified the election to the Senate Electoral
Tribunal made by Senators belonging to the party having the largest number of
votes of two of their party members but purporting to act on behalf of the party
having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on
whether Congress had formed the Commission on Appointments in accordance
with the Constitution and found that it did not. It declared that the Commission on
Appointments is a creature of the Constitution and its power does not come from
Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a
political issue. InGonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the

issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution-which was being
submitted to the people for ratification-satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes v. Chief Accountant of the
Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v.
Commission on Elections. In the first, we held that the officers and
employees of the Senate Electoral Tribunal are under its supervision
and control, not of that of the Senate President, as claimed by the latter;
in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified
the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives upon the
ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus, we
rejected the theory, advanced in these four cases, that the issues
therein raised were political questions the determination of which is
beyond judicial review.27
The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their
authority from the fundamental law and they do not have the final say on whether
their acts are within or beyond constitutional limits. 28 This ruling was reiterated
in Tolentino which held that acts of a constitutional convention called for the
purpose of proposing amendments to the Constitution are at par with acts of
Congress acting as a constituent assembly.29
In sum, this Court brushed aside the political question doctrine and
assumed jurisdiction whenever it found constitutionally-imposed limits on
the exercise of powers conferred upon the Legislature. 30
The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed
in Severino v. Governor-General,31 where it was held that the GovernorGeneral, as head of the executive department, could not be compelled by
mandamus to call a special election in the town of Silay for the purpose of
electing a municipal president. Mandamus and injunction could not lie to enforce
or restrain a duty which is discretionary. It was held that when the Legislature
conferred upon the Governor-General powers and duties, it did so for the reason
that he was in a better position to know the needs of the country than any other
member of the executive department, and with full confidence that he will perform
such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General
could not be compelled by mandamus to produce certain vouchers showing the
various expenditures of the Independence Commission. Under the principle of
separation of powers, it ruled that it was not intended by the Constitution that one
branch of government could encroach upon the field of duty of the other. Each
department has an exclusive field within which it can perform its part within
certain discretionary limits.34 It observed that "the executive and legislative
departments of government are frequently called upon to deal with what are
known as political questions, with which the judicial department of government
has no intervention. In all such questions, the courts uniformly refused to
intervene for the purpose of directing or controlling the actions of the other
department; such questions being many times reserved to those departments in
the organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case
enjoining the Chief Executive from deporting an obnoxious alien whose
continued presence in the Philippines was found by him to be injurious to the
public interest. It noted that sudden and unexpected conditions may arise,
growing out of the presence of untrustworthy aliens, which demand immediate
action. The President's inherent power to deport undesirable aliens is universally
denominated as political, and this power continues to exist for the preservation of
the peace and domestic tranquility of the nation. 37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the

exercise of the President's appointing power. It held that the appointing power is
the exclusive prerogative of the President, upon which no limitations may be
imposed by Congress, except those resulting from the need of securing
concurrence of the Commission on Appointments and from the exercise of the
limited legislative power to prescribe qualifications to a given appointive office.
We now come to the exercise by the President of his powers as
Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, this
Court has held that as Commander-in-Chief of the Armed Forces, the President
has the power to determine whether war, in the legal sense, still continues or has
terminated. It ruled that it is within the province of the political department and not
of the judicial department of government to determine when war is at end. 39
In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.40 President Quirino suspended the privilege of the writ of habeas
corpus for persons detained or to be detained for crimes of sedition, insurrection
or rebellion. The Court, citing Barcelon, declared that the authority to decide
whether the exigency has arisen requiring the suspension of the privilege
belongs to the President and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.42 Lansang reversed the previous cases and held that the suspension
of the privilege of the writ of habeas corpus was not a political
question. According to the Court, the weight of Barcelon was diluted by two
factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's
power to call out the militia which is a much broader power than suspension of
the privilege of the writ; and (2) the privilege was suspended by the American
Governor-General whose act, as representative of the sovereign affecting the
freedom of its subjects, could not be equated with that of the President of the
Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ
of habeas corpus is neither absolute nor unqualified because the
Constitution sets limits on the exercise of executive discretion on the
matter. These limits are: (1) that the privilege must not be suspended except
only in cases of invasion, insurrection or rebellion or imminent danger thereof;
and (2) when the public safety requires it, in any of which events the same may
be suspended wherever during such period the necessity for the suspension
shall exist. The extent of the power which may be inquired into by courts is
defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise
of power, it ruled that the function of the Court is not to supplant but merely to
check the Executive; to ascertain whether the President has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or
to determine the wisdom of his act. Judicial inquiry is confined to the question of
whether the President did not act arbitrarily.44 Using this yardstick, the Court
found that the President did not.
The emergency period of the 1970's flooded the Court with cases which
raised the political question defense. The issue divided the Court down the
middle. Javellana v. Executive Secretary45 showed that while a majority of the
Court held that the issue of whether or not the 1973 Constitution had been
ratified in accordance with the 1935 Constitution was justiciable, a majority also
ruled that the decisive issue of whether the 1973 Constitution had come into
force and effect, with or without constitutional ratification, was a political
question.46
The validity of the declaration of martial law by then President Marcos was
next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's
declaration of martial law. On whether the validity of the imposition of martial law
was a political or justiciable question, the Court was almost evenly divided. Onehalf embraced the political question position and the other half subscribed to the
justiciable position in Lansang. Those adhering to the political question doctrine
used different methods of approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.49 The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners
sought the issuance of a writ of habeas corpus. The Court found that the PCO
had the function of validating a person's detention for any of the offenses covered
in Proclamation No. 2045 which continued in force the suspension of the
privilege of the writ of habeas corpus. It held that the issuance of the PCO by the
President was not subject to judicial inquiry.50 It went further by declaring that
there was a need to re-examine Lansang with a view to reverting to Barcelon and
Montenegro. It observed that in times of war or national emergency, the
President must be given absolute control for the very life of the nation and
government is in great peril. The President, it intoned, is answerable only to his
conscience, the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales,
Jr. v. Enrile52 reiterating Lansang. It held that by the power of judicial review, the
Court must inquire into every phase and aspect of a person's detention from the
moment he was taken into custody up to the moment the court passes upon the
merits of the petition. Only after such a scrutiny can the court satisfy itself that the
due process clause of the Constitution has been met. 53
It is now history that the improper reliance by the Court on the political
question doctrine eroded the people's faith in its capacity to check abuses
committed by the then Executive in the exercise of his commander-in-chief
powers, particularly violations against human rights. The refusal of courts
to be pro-active in the exercise of its checking power drove the people to
the streets to resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission
that drafted the 1987 Constitution. The first was the need to grant this Court the
express power to review the exercise of the powers as commander-in-chief by
the President and deny it of any discretion to decline its
exercise. The second was the need to compel the Court to be pro-active by
expanding its jurisdiction and, thus, reject its laid back stance against acts
constituting grave abuse of discretion on the part of any branch or instrumentality
of government. Then Chief Justice Roberto Concepcion, a member of the
Constitutional Commission, worked for the insertion of the second paragraph of
Section 1, Article VIII in the draft Constitution,54 which reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government."
The language of the provision clearly gives the Court the power to strike down
acts amounting to grave abuse of discretion of both the legislative and executive
branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of
our constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all

armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for
a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to Congress. The
Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to
be determined by Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following

such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of
the armed forces of the Philippines, may call out the armed forces subject
to two conditions: (1) whenever it becomes necessary; and (2) to prevent or
suppress lawless violence, invasion or rebellion. Undeniably, these
conditions lay down the sine qua requirement for the exercise of the power
and the objective sought to be attained by the exercise of the power. They
define the constitutional parameters of the calling out power. Whether or
not there is compliance with these parameters is a justiciable issue and is
not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out
power," unlike the suspension of the privilege of the writ of habeas corpus and
the declaration of martial law, is not a justiciable issue but a political question and
therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed
on the floor of the Constitutional Convention is valuable, it is not necessarily
expressive of the people's intent. 55 The proceedings of the Convention are less
conclusive on the proper construction of the fundamental law than are legislative
proceedings of the proper construction of a statute, for in the latter case it is the
intent of the legislature the courts seek, while in the former, courts seek to arrive
at the intent of the peoplethrough the discussions and deliberations of their
representatives.56 The conventional wisdom is that the Constitution does not
derive its force from the convention which framed it, but from the people who
ratified it, the intent to be arrived at is that of the people. 57
It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency
of the factual bases used by the President in the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law. It
does not follow, however, that just because the same provision did not
grant to this Court the power to review the exercise of the calling out power
by the President, ergo, this Court cannot pass upon the validity of its
exercise.
Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power
because of the political question doctrine as it did in the past. In fine, the
express grant simply stresses the mandatory duty of this Court to check
the exercise of the commander-in-chief powers of the President. It
eliminated the discretion of the Court not to wield its power of review thru
the use of the political question doctrine.
It may be conceded that the calling out power may be a "lesser power"
compared to the power to suspend the privilege of the writ of habeas corpus and
the power to declare martial law. Even then, its exercise cannot be left to the
absolute discretion of the Chief Executive as Commander-in-Chief of the armed
forces, as its impact on the rights of our people protected by the Constitution
cannot be downgraded. We cannot hold that acts of the commander-in-chief
cannot be reviewed on the ground that they have lesser impact on the civil and
political rights of our people. The exercise of the calling out power may be
"benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to
push the political question doctrine too far, is apropos. It will not be
complementary to the Court if it handcuffs itself to helplessness when a
grievously injured citizen seeks relief from a palpably unwarranted use of
presidential or military power, especially when the question at issue falls in the
penumbra between the "political" and the "justiciable. " 58
We should not water down the ruling that deciding whether a matter has
been committed by the Constitution to another branch of government, or whether
the action of that branch exceeds whatever authority has been committed, is a
delicate exercise in constitutional interpretation, and is a responsibility of the
Court as ultimate interpreter of the fundamental law.59 When private
justiciable rights are involved in a suit, the Court must not refuse to assume
jurisdiction even though questions of extreme political importance are necessarily
involved.60 Every officer under a constitutional government must act according to
law and subject to the controlling power of the people, acting through the courts,
as well as through the executive and legislative. One department is just as
representative of the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the law places upon all
official action.61 This historic role of the Court is the foundation stone of a
government of laws and not of men.62
I join the Decision in its result.
SEPARATE OPINION
VITUG, J.:
In the equation of judicial power, neither of two extremes - one totalistic and
the other bounded - is acceptable nor ideal. The 1987 Constitution has
introduced its definition of the term "judicial power" to be that which -
x x x includes the duty of the courts of justice to settle actual

enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.1
It is not meant that the Supreme Court must be deemed vested with the
awesome power of overseeing the entire bureaucracy, let alone of
institutionalizing judicial absolutism, under its mandate. But while this Court does
not wield unlimited authority to strike down an act of its two co-equal branches of
government, it must not wither under technical guise on its constitutionally
ordained task to intervene, and to nullify if need be, any such act as and when it
is attended by grave abuse of discretionamounting to lack or excess of
jurisdiction. The proscription then against an interposition by the Court into purely
political questions, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his
concurring opinion:
"x x x [I] concur with the majority that this Court has jurisdiction over
cases like the present x x x so as to establish in this country the judicial
supremacy, with the Supreme Court as the final arbiter, to see that no
one branch or agency of the government transcends the Constitution,
not only in justiceable but political questions as well."3
It is here when the Court must have to depart from the broad principle of
separation of powers that disallows an intrusion by it in respect to the purely
political decisions of its independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence
as being, and confined to, a capricious and whimsical or despotic exercise of
judgment amounting to lack or excess of jurisdiction. Minus the not-so-unusual
exaggerations often invoked by litigants in the duel of views, the act of the
President in simply calling on the Armed Forces of the Philippines, an
executive prerogative, to assist the Philippine National Police in "joint
visibility patrols" in the metropolis does not, I believe, constitute grave abuse of
discretion that would now warrant an exercise by the Supreme Court of its
extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be without

standing to question the validity of LOI 02/2000 which mandates the Philippine
Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I
dissent insofar as the opinion dismisses the petition in this case on other
grounds. I submit that judgment on the substantive constitutional issues raised by
petitioner must await an actual case involving real parties with "injuries" to show
as a result of the operation of the challenged executive action. While as an
organization for the advancement of the rule of law petitioner has an interest in
upholding the Constitution, its interest is indistinguishable from the interest of the
rest of the citizenry and falls short of that which is necessary to give petitioner
standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality
of governmental action requires that (1) the petitioner must have suffered an
"injury in fact" of an actual or imminent nature; (2) there must be a causal
connection between the injury and the conduct complained of; and (3) the injury
is likely to be redressed by a favorable action by this Court. 1 The "injury in fact"
test requires more than injury to a cognizable interest. It requires that the party
seeking review be himself among those injured. 2
My insistence on compliance with the standing requirement is grounded in
the conviction that only a party injured by the operation of the governmental
action challenged is in the best position to aid the Court in determining the
precise nature of the problem presented. Many a time we have adverted to the
power of judicial review as an awesome power not to be exercised save in the
most exigent situation. For, indeed, sound judgment on momentous constitutional
questions is not likely to be reached unless it is the result of a clash of adversary
arguments which only parties with direct and specific interest in the outcome of
the controversy can make. This is true not only when we strike down a law or
official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial
interest to protect, we do not have evidence on the effect of military presence in
malls and commercial centers, i.e., whether such presence is coercive or
benign. We do not know whether the presence of so many marines and
policemen scares shoppers, tourists, and peaceful civilians, or whether it is
reassuring to them. To be sure, the deployment of troops to such places is not
like parading them at the Luneta on Independence Day. Neither is it, however,
like calling them out because of actual fighting or the outbreak of violence.
We need to have evidence on these questions because, under the
Constitution, the President's power to call out the armed forces in order to
suppress lawless violence, invasion or rebellion is subject to the limitation that
the exercise of this power is required in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to
suppress lawless violence, invasion or rebellion or also the suspension of the
privilege of the writ of habeas corpus or the proclamation of martial law (in case
of invasion or rebellion), the exercise of the President's powers as commander-
in-chief, requires proof - not mere assertion. 4 As has been pointed out, "Standing
is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a
factual showing of perceptible harm." 5
Because of the absence of such record evidence, we are left to guess or
even speculate on these questions. Thus, at one point, the majority opinion says
that what is involved here is not even the calling out of the armed forces but only
the use of marines for law enforcement. (p. 13) At another point, however, the
majority opinion somersaults and says that because of bombings perpetrated by
lawless elements, the deployment of troops in shopping centers and public
utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground
that the calling out of the military does not violate the Constitution, just as we are
likely to do so if we grant the petition and invalidate the executive issuance in
question. For indeed, the lack of a real, earnest and vital controversy can only
impoverish the judicial process. That is why, as Justice Laurel emphasized in
the Angara case, "this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties,
and limited further to the constitutional question raised or the very lis
mota presented."6
We are told, however, that the issues raised in this case are of "paramount
interest" to the nation. It is precisely because the issues raised are of paramount
importance that we should all the more forego ruling on the constitutional issues
raised by petitioner and limit the dismissal of this petition on the ground of lack of
standing of petitioner. A Fabian policy of leaving well enough alone is a counsel
of prudence.
For these reasons and with due appreciation of the scholarly attention
lavished by the majority opinion on the constitutional questions raised, I am
constrained to limit my concurrence to the dismissal of this suit on the ground of
lack of standing of petitioner and the consequent lack of an actual case or
controversy.
Sec. 1, Article VIII, 1987 Constitution.

Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3
Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].
5
5 Phil. 87 [1905].
6
Id. at 97.
7
Id. at 104.
8
See Cruz, Philippine Political law, p. 87 [1998].
9
Id. at 113-114.
10
Id. at 106-107.
11
46 Phil. 83 [1924].
12
Id. at 97.
13
77 Phil. 192 [1946].
2
14
78 Phil. 1 [1947].
Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question
doctrine, imports absolute verity on the courts-at 12.
16
97 Phil. 358 [1955].
17
109 Phil. 863 [1960].
18
83 Phil. 17 [1949].
19
Id. at 21-22.
20
Id. at 68-69.
21
103 Phil. 1051 [1957].
22
Id. at 1068.
23
Id. at 1083.
24
5 SCRA 1 [1962].
25
21 SCRA 774 [1967].
26
41 SCRA 702 [1971].
27
Id. at 785-786.
28
Id. at 787.
29
41 SCRA at 713.
30
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].
31
16 Phil. 366 [1910].
32
Id. at 401.
33
45 Phil. 612 [1924].
34
Id. At 630.
35
Id. at 637-638.
36
16 Phil. 534 [1910].
37
Id. at 568-569, 576.
38
94 Phil. 903 [1954].
39
Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].
40
91 Phil. 882 [1952].
41
Id. at 887.
42
42 SCRA 448 [1971].
43
Id. at 474.
44
Id. at 480-481.
45
50 SCRA 30 [1973].
46
Id. at 138, 140-141.
47
59 SCRA 183 [1973].
48
Ibid.
49
121 SCRA 472 [1983].
50
Id. at 490-491.
51
Id. at 500-501.
52
121 SCRA 538 [1983].
53
Id. at 563.
54
See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the
Republic of the Philippines A Commentary, p. 863 [1996].
55
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].
56
Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998].
57
Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].
58
SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].
59
Baker v. Carr, 7 L Ed 2d at 682.
60
Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].
61
Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].
62
Id.
1
Section 1, Article VIII of the Constitution.
2
83 Phil. 17.
3
Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756.
1
Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast
Attorneys of the Philippines v. COMELEC, 289 SCRA 343 (1998).
15
Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
See CONST., ART. VII, 18.
4
See Lansang v. Garcia, 42 SCRA 448 (1971).
5
Lujan v. Defenders of Wildlife, supra.
6
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
3
[1]
Rollo, pp. 17-21.
[2]
As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military
operations in Mindanao, and replaced by Air Force personnel who took over their functions in the joint
visibility patrols. The Air Force personnel, just like the Marines, were ordered to assist the PNP, also by
virtue of LOI 2/2000. Since both the Marines and Air Force belong to the Armed Forces, the controversy
has not been rendered moot and academic by the replacement of the former by the latter. The validity of the
deployment of the armed forces in the joint visibility patrols thus remain an issue.
[3]
Rollo, pp. 75-76.
[4]
Id., at 75.
[5]
Id.
[6]
Id.
[7]
Rollo, p. 75.
[8]
Id., at 17-18.
[9]
Id.
[10]
Rollo, p. 7.
[11]
Id., at 24.
[12]
Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of
the Department of Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA
392 (1980); and, People v. Vera, 65 Phil. 56 (1937).
[13]
Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).
[14]
Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151
SCRA 703 (1987).
[15]
[16]
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).
Joya v. Presidential Commission on Good Government,

supra note
579 citing Dumlao v. Commission on Elections, 95 SCRA 392 (1980).
13,
at
[17]
Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997)
citing Garcia v. Executive Secretary, 211 SCRA 219 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991);
Basco v. Pagcor, 197 SCRA 52 (1991); and, Araneta v. Dinglasan, 84 Phil. 368 (1949).
[18]
Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good
Government, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice
(now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)]
"(a) party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the issues raised," favorably citing our ruling in the
Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L-2756 (Araneta v. Angeles); L-3054
(Rodriquez v. Tesorero de Filipinas); and L-3056 (Barredo v.COMELEC), 84 Phil. 368 (1940)] where this
Court brushed aside this technicality because "the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must, technical rules of
procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly
described as a doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v.Morato, 250
SCRA 130 (1995)].
[19]
Rollo, p. 12
[20]
Article II, Sections 4 and 5 of the Constitution provide:
Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call
upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military or civil service.
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 by all the people of the blessings of democracy.
[21]
177 SCRA 668, 694 (1989).
[22]
WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).
[23]
103 Phil. 1051 (1957).
[24]
369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
[25]
Article VIII, Sec. 1 of the 1987 CONSTITUTION.
[26]
Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
[27]
Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).
[28]
Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v.
Mitra, 187 SCRA 377 (1990).
[29]
Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165
SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).
[30]
Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
[31]
Bondoc v. Pineda, 201 SCRA 792 (1991).
[32]
Drilon v. Lim, 235 SCRA 135 (1994).
[33]
Sarmiento v. Mison, 156 SCRA 549 (1987).
[34]
II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp.

409, 412 (1986).
[35]
Rollo, p. 75.
[36]
Section 3, provides:
Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the
protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of
the national territory.
[37]
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
a. RD, NCRPO is designated as Task Force Commander TULUNGAN.

[38]
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE

MARINES:
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.
[39]
No. 8 of the LOI provides: TASKS:
k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR
for police visibility operations.
-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility
patrols.
-Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs.
-Perform other tasks as directed.
[40]
No. 8 of the LOI states: TASKS:
c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be
utilize (sic) by the Philippine Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces
brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel
involved in the visibility patrol operations:
1,000 sets of PNP GOA Uniform
500 each raincoats
500 each Probaton
500 each Whistle
500 each handcuffs
500 each Combat Boots
500 each low cut shoes
-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marines members of the Inspection Teams.
- Perform other tasks as directed.40
[41]
Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any time, be appointed in the government
including government-owned and controlled corporations or any of their subsidiaries.
[42]
CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In
Re Guidelines for the Designation of Registration Centers and the Accountable Officers for the Polaroid
Instant Cameras for Purposes of the Registration of Voters on 8-9 May 1999 in the Autonomous Region in
Muslim Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In the Matter of Deputizing the
Armed Forces of the Philippines and the Three (3) AFP Components, Namely: Philippine Army, Philippine
Navy and Philippine Air Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct
Mapping, Registration of Voters and the Holding of the September 13, 1999 Elections in the Autonomous
Region in Muslim Mindanao (ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An
Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations therefor, and for other Purposes; Administrative Code of 1987, Book V, Title I, Subtitle C,
Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985),
which is also known as Omnibus Election Code.
[43]
Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National
Red Cross Section; Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V
of Republic Act Numbered Ninety-Five, entitled An Act to Incorporate the Philippine National Red Cross.
[44]
Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the
Development, Administration, Organization, Training, Maintenance and Utilization of the Citizen Armed
Forces of the Armed Forces of the Philippines and for other Purposes.
[45]
Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The
Philippine Sports Commission, Defining its Powers, Functions and Responsibilities, Appropriating Funds
therefor, and for other Purposes.
[46]
Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum
System, Providing for its Permanent Home and for other Purposes.
[47]
Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development,
Management and Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent
Thereto, and for other Purposes; Memorandum Circular No. 150 (1996), which is entitled Amending
Memorandum Circular No. 128, dated July 20, 1995 by Reorganizing the Presidential Task Force on
Tubbataha Reef National Marine Park; Executive Order No. 544 (1979), Letter I, which is entitled Creating
a Presidential Committee for the Conservation of the Tamaraw, Defining its Powers and for other Purposes.
[48]
Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129
Reorganizing and Strengthening the Department of Agrarian Reform and for other Purposes.
[49]
Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff
and Customs Laws of the Philippines; Executive Order No. 45 (1998), which is entitled Creating a
Presidential Anti-Smuggling Task Force to Investigate and Prosecute Crimes Involving Large-Scale
Smuggling and other Frauds upon Customs and Providing Measures to Expedite Seizure Proceedings;
[50]
These cases involved joint military and civilian law enforcement operations: People v. Escalante, G.R
No. 106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la
Cruz, G.R. No. 83260, April 18, 1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case
recognizes the complementary roles of the PNP and the military in conducting anti-crime campaigns,
provided that the peoples rights are not violated in these words: If the military and the police must conduct
concerted campaigns to flush out and catch criminal elements, such drives must be consistent with the
constitutional and statutory rights of all people affected by such actions. The creation of the Task Force also
finds support in Valmonte v. de Villa, 185 SCRA 665 (1990). Executive Order No. 62 (1999), which is
entitled Creating the Philippine Center on Transnational Crime to Formulate and Implement a Concerted
Program of Action of All Law Enforcement, Intelligence and other Agencies for the Prevention and Control
of Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a Presidential AntiOrganized Crime Commission and a Presidential Anti-Organized Crime Task Force, to Investigate and
Prosecute Criminal Elements in the Country; Executive Order No. 280 (1995), which is entitled Creating a
Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause the
Investigation and Prosecution of Military and other Law Enforcement Personnel on their Former Members
and Their Cohorts Involved in Criminal Activities.
[51]
Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to
Extend Optimum Support and Assistance to the Professional Regulation Commission in its Conduct of
Licensure Examinations.
[52]
Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned
to Extend Maximum Support and Assistance to the National Educational Testing and Research Center
(NETRC) of the Department of Education, Culture and Sports (DECS) in the Conduct of Tests of National
Coverage.
[53]
Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and
Prevention Coordinating Center to Orchestrate Efforts of national Government Agencies, Local
Government Units, and Non-Government Organizations for a More Effective Anti-Drug Campaign.
[54]
Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City
the Local Civil Registrar, Amending for the Purpose Section Forty-Three of the Charter of said City;"
Republic Act No. 537 (1950), which is entitled "An Act to Revise the Charter of Quezon
City; Commonwealth Act No. 592 (1940), which is entitled An Act to Create the City of Dansalan;
Commonwealth Act No. 509 (1939), which is entitled An Act to Create Quezon City; Commonwealth Act
No. 326 (1938), which is entitled An Act Creating the City of Bacolod; Commonwealth Act No. 39 (1936),
which is entitled An Act Creating the City of Zamboanga; Commonwealth Act No. 51 (1936), which is
entitled An Act Creating the City of Davao.
[55]
Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six.
[56]
Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics
Board and the Civil Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the
Philippines and Authorizing the Appropriation of Funds Therefor.
[57]
Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to
Adopt Modern Scientific Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and
Droughts, Creating a Council on Typhoons and Prevent Destruction by Flood, Rains and Droughts,
Creating a Council on Typhoon Moderation and Flood Control Research and Development, Providing for
its Powers and Functions and Appropriating Funds Therefor.
[58]
Local Government Code of 1991, Book I, Title Seven, Section 116.
[59]
This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion
in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 (1952).
[60]
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).
[61]
18 U.S.C.A 1385 (1878).
[62]
Ibid.
[63]
Bissonette v. Haig, supra note 60, at 1390.
[64]
A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or

condemns and compulsory if it exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C.,
1988). See also FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONS
ON MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT,
[65]
L.O.I. 02/2000, TULUNGAN, Rollo, pp. 17-22.
[66]
No.6oftheLOIstates:DEPLOYMENT/EMPLOYMENTOFJOINTNCRPOPHILIPPINE
MARINES:
a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for
police visibility patrols in tandem with the Philippine Marines.
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on
police patrol/visibility procedures.66
[67]
Supra note 34.
[68]
Supra note 32.
[69]
No.9oftheLOIstates:
d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs.
[70]
Supra note 35.
[71]
Rollo, p. 70.
PHILCONSA V ENRIQUEZ

SUPREME COURT
Manila
EN BANC
G.R. No. 113105 August 19, 1994

PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B. GARCIA and A.
GONZALES, petitioners,
vs.
HON. SALVADOR ENRIQUEZ, as Secretary of Budget and Management; HON.
VICENTE T. TAN, as National Treasurer and COMMISSION ON AUDIT, respondents.
G.R. No. 113174 August 19, 1994
RAUL S. ROCO, as Member of the Philippine Senate, NEPTALI A. GONZALES,
Chairman of the Committee on Finance of the Philippine Senate, and EDGARDO J.
ANGARA, as President and Chief Executive of the Philippine Senate, all of whom also
sue as taxpayers, in their own behalf and in representation of Senators HEHERSON
ALVAREZ, AGAPITO A. AQUINO, RODOLFO G. BIAZON, JOSE D. LINA, JR., ERNESTO
F. HERRERA, BLAS F. OPLE, JOHN H. OSMENA, GLORIA MACAPAGAL- ARROYO,
VICENTE C. SOTTO III, ARTURO M. TOLENTINO, FRANCISCO S. TATAD, WIGBERTO E.
TAADA and FREDDIE N. WEBB,petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT,
and THE NATIONAL TREASURER, THE COMMISSION ON AUDIT, impleaded herein as
an unwilling
co-petitioner, respondents.
G.R. No. 113766 August 19, 1994
WIGBERTO E. TAADA and ALBERTO G. ROMULO, as Members of the Senate and as
taxpayers, and FREEDOM FROM DEBT COALITION, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR. in his capacity as Executive Secretary, HON.
SALVADOR ENRIQUEZ, JR., in his capacity as Secretary of the Department of Budget
and Management, HON. CARIDAD VALDEHUESA, in her capacity as National
Treasurer, and THE COMMISSION ON AUDIT, respondents.
G.R. No. 113888 August 19, 1994
WIGBERTO E. TAADA and ALBERTO G. ROMULO, as Members of the Senate and as
taxpayers, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON.
SALVADOR ENRIQUEZ, JR., in his capacity as Secretary of the Department of Budget
and Management, HON. CARIDAD VALDEHUESA, in her capacity as National
Treasurer, and THE COMMISSION ON AUDIT, respondents.
Ramon R. Gonzales for petitioners in G.R. No. 113105.

Eddie Tamondong for petitioners in G.R. Nos. 113766 & 113888.
Roco, Buag, Kapunan, Migallos & Jardeleza for petitioners Raul S. Roco, Neptali A.
Gonzales and Edgardo Angara.
Ceferino Padua Law Office fro intervenor Lawyers Against Monopoly and Poverty (Lamp).
QUIASON, J.:
Once again this Court is called upon to rule on the conflicting claims of authority between the
Legislative and the Executive in the clash of the powers of the purse and the sword.
Providing the focus for the contest between the President and the Congress over control of
the national budget are the four cases at bench. Judicial intervention is being sought by a
group of concerned taxpayers on the claim that Congress and the President have
impermissibly exceeded their respective authorities, and by several Senators on the claim
that the President has committed grave abuse of discretion or acted without jurisdiction in
the exercise of his veto power.
I
House Bill No. 10900, the General Appropriation Bill of 1994 (GAB of 1994), was passed and
approved by both houses of Congress on December 17, 1993. As passed, it imposed
conditions and limitations on certain items of appropriations in the proposed budget
previously submitted by the President. It also authorized members of Congress to propose
and identify projects in the "pork barrels" allotted to them and to realign their respective
operating budgets.
Pursuant to the procedure on the passage and enactment of bills as prescribed by the
Constitution, Congress presented the said bill to the President for consideration and
approval.
On December 30, 1993, the President signed the bill into law, and declared the same to
have become Republic Act No. 7663, entitled "AN ACT APPROPRIATING FUNDS FOR THE
OPERATION OF THE GOVERNMENT OF THE PHILIPPINES FROM JANUARY ONE TO
DECEMBER THIRTY ONE, NINETEEN HUNDRED AND NINETY-FOUR, AND FOR OTHER
PURPOSES" (GAA of 1994). On the same day, the President delivered his Presidential Veto
Message, specifying the provisions of the bill he vetoed and on which he imposed certain
conditions.
No step was taken in either House of Congress to override the vetoes.
In G.R. No. 113105, the Philippine Constitution Association, Exequiel B. Garcia and Ramon
A. Gonzales as taxpayers, prayed for a writ of prohibition to declare as unconstitutional and
void: (a) Article XLI on the Countrywide Development Fund, the special provision in Article I
entitled Realignment of Allocation for Operational Expenses, and Article XLVIII on the
Appropriation for Debt Service or the amount appropriated under said Article XLVIII in excess
of the P37.9 Billion allocated for the Department of Education, Culture and Sports; and (b)
the veto of the President of the Special Provision of

Article XLVIII of the GAA of 1994 (Rollo, pp. 88-90, 104-105)
In G.R. No. 113174, sixteen members of the Senate led by Senate President Edgardo J.
Angara, Senator Neptali A. Gonzales, the Chairman of the Committee on Finance, and
Senator Raul S. Roco, sought the issuance of the writs of certiorari, prohibition and
mandamus against the Executive Secretary, the Secretary of the Department of Budget and
Management, and the National Treasurer.
Suing as members of the Senate and taxpayers, petitioners question: (1) the constitutionality
of the conditions imposed by the President in the items of the GAA of 1994: (a) for the
Supreme Court, (b) Commission on Audit (COA), (c) Ombudsman, (d) Commission on
Human Rights (CHR), (e) Citizen Armed Forces Geographical Units (CAFGU'S) and (f) State
Universities and Colleges (SUC's); and (2) the constitutionality of the veto of the special
provision in the appropriation for debt service.
In G.R. No. 113766, Senators Alberto G. Romulo and Wigberto Taada (a co-petitioner in
G.R. No. 113174), together with the Freedom from Debt Coalition, a non-stock domestic
corporation, sought the issuance of the writs of prohibition and mandamus against the
Executive Secretary, the Secretary of the Department of Budget and Management, the
National Treasurer, and the COA.
Petitioners Taada and Romulo sued as members of the Philippine Senate and taxpayers,
while petitioner Freedom from Debt Coalition sued as a taxpayer. They challenge the
constitutionality of the Presidential veto of the special provision in the appropriations for debt
service and the automatic appropriation of funds therefor.
In G.R. No. 11388, Senators Taada and Romulo sought the issuance of the writs of
prohibition and mandamus against the same respondents in G.R. No. 113766. In this
petition, petitioners contest the constitutionality of: (1) the veto on four special provision
added to items in the GAA of 1994 for the Armed Forces of the Philippines (AFP) and the
Department of Public Works and Highways (DPWH); and (2) the conditions imposed by the
President in the implementation of certain appropriations for the CAFGU's, the DPWH, and
the National Housing Authority (NHA).
Petitioners also sought the issuance of temporary restraining orders to enjoin respondents
Secretary of Budget and Management, National Treasurer and COA from enforcing the
questioned provisions of the GAA of 1994, but the Court declined to grant said provisional
reliefs on the time- honored principle of according the presumption of validity to statutes and
the presumption of regularity to official acts.
In view of the importance and novelty of most of the issues raised in the four petitions, the
Court invited former Chief Justice Enrique M. Fernando and former Associate Justice Irene
Cortes to submit their respective memoranda asAmicus curiae, which they graciously did.
II
Locus Standi
When issues of constitutionality are raised, the Court can exercise its power of judicial review
only if the following requisites are compresent: (1) the existence of an actual and appropriate
case; (2) a personal and substantial interest of the party raising the constitutional question;
(3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case (Luz Farms v. Secretary of the Department
of Agrarian Reform, 192 SCRA 51 [1990]; Dumlao v. Commission on Elections, 95 SCRA
392 [1980]; People v. Vera, 65 Phil. 56 [1937]).
While the Solicitor General did not question the locus standi of petitioners in G.R. No.
113105, he claimed that the remedy of the Senators in the other petitions is political (i.e., to
override the vetoes) in effect saying that they do not have the requisite legal standing to
bring the suits.
The legal standing of the Senate, as an institution, was recognized in Gonzales v. Macaraig,
Jr., 191 SCRA 452 (1990). In said case, 23 Senators, comprising the entire membership of
the Upper House of Congress, filed a petition to nullify the presidential veto of Section 55 of
the GAA of 1989. The filing of the suit was authorized by Senate Resolution No. 381,
adopted on February 2, 1989, and which reads as follows:
Authorizing and Directing the Committee on Finance to Bring in the Name of
the Senate of the Philippines the Proper Suit with the Supreme Court of the
Philippines contesting the Constitutionality of the Veto by the President of
Special and General Provisions, particularly Section 55, of the General
Appropriation Bill of 1989 (H.B. No. 19186) and For Other Purposes.
In the United States, the legal standing of a House of Congress to sue has been recognized
(United States v. American Tel. & Tel. Co., 551 F. 2d 384, 391 [1976]; Notes: Congressional
Access To The Federal Courts, 90 Harvard Law Review 1632 [1977]).
While the petition in G.R. No. 113174 was filed by 16 Senators, including the Senate
President and the Chairman of the Committee on Finance, the suit was not authorized by the
Senate itself. Likewise, the petitions in
G.R. Nos. 113766 and 113888 were filed without an enabling resolution for the purpose.
Therefore, the question of the legal standing of petitioners in the three cases becomes a
preliminary issue before this Court can inquire into the validity of the presidential veto and
the conditions for the implementation of some items in the GAA of 1994.
We rule that a member of the Senate, and of the House of Representatives for that matter,
has the legal standing to question the validity of a presidential veto or a condition imposed
on an item in an appropriation bill.
Where the veto is claimed to have been made without or in excess of the authority vested on
the President by the Constitution, the issue of an impermissible intrusion of the Executive
into the domain of the Legislature arises (Notes: Congressional Standing To Challenge
Executive Action, 122 University of Pennsylvania Law Review 1366 [1974]).
To the extent the power of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution
(Coleman v. Miller, 307 U.S. 433 [1939]; Holtzman v. Schlesinger, 484 F. 2d 1307 [1973]).
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress (Kennedy
v. Jones, 412 F. Supp. 353 [1976]). In such a case, any member of Congress can have a
resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:
This is, then, the clearest case of the Senate as a whole or individual
Senators as such having a substantial interest in the question at issue. It
could likewise be said that there was the requisite injury to their rights as
Senators. It would then be futile to raise any locus standi issue. Any intrusion
into the domain appertaining to the Senate is to be resisted. Similarly, if the
situation were reversed, and it is the Executive Branch that could allege a
transgression, its officials could likewise file the corresponding action. What
cannot be denied is that a Senator has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office
(Memorandum, p. 14).
It is true that the Constitution provides a mechanism for overriding a veto (Art. VI, Sec. 27
[1]). Said remedy, however, is available only when the presidential veto is based on policy or
political considerations but not when the veto is claimed to be ultra vires. In the latter case, it
becomes the duty of the Court to draw the dividing line where the exercise of executive
power ends and the bounds of legislative jurisdiction begin.
III
G.R. No. 113105
1. Countrywide Development Fund
Article XLI of the GAA of 1994 sets up a Countrywide Development Fund of
P2,977,000,000.00 to "be used for infrastructure, purchase of ambulances and computers
and other priority projects and activities and credit facilities to qualified beneficiaries." Said
Article provides:
COUNTRYWIDE DEVELOPMENT FUND
For Fund requirements of countrywide
development projects P 2,977,000,000
New Appropriations, by Purpose

Current Operating Expenditures
A. PURPOSE
Personal Maintenance Capital Total
Services and Other Outlays
Operating
Expenses
1. For Countrywide
Developments Projects P250,000,000 P2,727,000,000 P2,977,000,000
TOTAL NEW
APPROPRIATIONS P250,000,000 P2,727,000,000 P2,977,000,000
Special Provisions
1. Use and Release of Funds. The amount herein appropriated shall be used
for infrastructure, purchase of ambulances and computers and other priority
projects and activities, and credit facilities to qualified beneficiaries as
proposed and identified by officials concerned according to the following
allocations: Representatives, P12,500,000 each; Senators, P18,000,000
each; Vice-President, P20,000,000; PROVIDED, That, the said credit
facilities shall be constituted as a revolving fund to be administered by a
government financial institution (GFI) as a trust fund for lending operations.
Prior years releases to local government units and national government
agencies for this purpose shall be turned over to the government financial
institution which shall be the sole administrator of credit facilities released
from this fund.
The fund shall be automatically released quarterly by way of Advice of
Allotments and Notice of Cash Allocation directly to the assigned
implementing agency not later than five (5) days after the beginning of each
quarter upon submission of the list of projects and activities by the officials
concerned.
2. Submission of Quarterly Reports. The Department of Budget and
Management shall submit within thirty (30) days after the end of each quarter
a report to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from this Fund. The report shall include
the listing of the projects, locations, implementing agencies and the
endorsing officials (GAA of 1994, p. 1245).
Petitioners claim that the power given to the members of Congress to propose and identify
the projects and activities to be funded by the Countrywide Development Fund is an
encroachment by the legislature on executive power, since said power in an appropriation
act in implementation of a law. They argue that the proposal and identification of the projects
do not involve the making of laws or the repeal and amendment thereof, the only function
given to the Congress by the Constitution (Rollo, pp. 78- 86).
Under the Constitution, the spending power called by James Madison as "the power of the
purse," belongs to Congress, subject only to the veto power of the President. The President
may propose the budget, but still the final say on the matter of appropriations is lodged in the
Congress.
The power of appropriation carries with it the power to specify the project or activity to be
funded under the appropriation law. It can be as detailed and as broad as Congress wants it
to be.
The Countrywide Development Fund is explicit that it shall be used "for infrastructure,
purchase of ambulances and computers and other priority projects and activities and credit
facilities to qualified beneficiaries . . ." It was Congress itself that determined the purposes for
the appropriation.
Executive function under the Countrywide Development Fund involves implementation of the
priority projects specified in the law.
The authority given to the members of Congress is only to propose and identify projects to
be implemented by the President. Under Article XLI of the GAA of 1994, the President must
perforce examine whether the proposals submitted by the members of Congress fall within
the specific items of expenditures for which the Fund was set up, and if qualified, he next
determines whether they are in line with other projects planned for the locality. Thereafter, if
the proposed projects qualify for funding under the Funds, it is the President who shall
implement them. In short, the proposals and identifications made by the members of
Congress are merely recommendatory.
The procedure of proposing and identifying by members of Congress of particular projects or
activities under Article XLI of the GAA of 1994 is imaginative as it is innovative.
The Constitution is a framework of a workable government and its interpretation must take
into account the complexities, realities and politics attendant to the operation of the political
branches of government. Prior to the GAA of 1991, there was an uneven allocation of
appropriations for the constituents of the members of Congress, with the members close to
the Congressional leadership or who hold cards for "horse-trading," getting more than their
less favored colleagues. The members of Congress also had to reckon with an
unsympathetic President, who could exercise his veto power to cancel from the appropriation
bill a pet project of a Representative or Senator.
The Countrywide Development Fund attempts to make equal the unequal. It is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project.
2. Realignment of Operating Expenses
Under the GAA of 1994, the appropriation for the Senate is P472,000,000.00 of which
P464,447,000.00 is appropriated for current operating expenditures, while the appropriation
for the House of Representatives is P1,171,924,000.00 of which P1,165,297,000.00 is
appropriated for current operating expenditures (GAA of 1994, pp. 2, 4, 9, 12).
The 1994 operating expenditures for the Senate are as follows:
Personal Services
Salaries, Permanent 153,347
Salaries/Wage, Contractual/Emergency 6,870
Total Salaries and Wages 160,217

=======
Other Compensation
Step Increments 1,073

Honoraria and Commutable Allowances 3,731
Compensation Insurance Premiums 1,579
Pag-I.B.I.G. Contributions 1,184
Medicare Premiums 888
Bonus and Cash Gift 14,791
Terminal Leave Benefits 2,000
Personnel Economic Relief Allowance 10,266
Additional Compensation of P500 under A.O. 53 11,130
Others 57,173
Total Other Compensation 103,815
01 Total Personal Services 264,032

=======
Maintenance and Other Operating Expenses
02 Traveling Expenses 32,841
03 Communication Services 7,666
04 Repair and Maintenance of Government Facilities 1,220
05 Repair and Maintenance of Government Vehicles 318
06 Transportation Services 128
07 Supplies and Materials 20,189
08 Rents 24,584
14 Water/Illumination and Power 6,561
15 Social Security Benefits and Other Claims 3,270
17 Training and Seminars Expenses 2,225
18 Extraordinary and Miscellaneous Expenses 9,360
23 Advertising and Publication
24 Fidelity Bonds and Insurance Premiums 1,325
29 Other Services 89,778
Total Maintenance and Other Operating Expenditures 200,415
Total Current Operating Expenditures 464,447

=======
(GAA of 1994, pp. 3-4)
The 1994 operating expenditures for the House of Representatives are as follows:
Personal Services
Salaries, Permanent 261,557
Salaries/Wages, Contractual/Emergency 143,643
Total Salaries and Wages 405,200

=======
Other Compensation
Step Increments 4,312

Honoraria and Commutable
Allowances 4,764
Compensation Insurance
Premiums 1,159
Pag-I.B.I.G. Contributions 5,231
Medicare Premiums 2,281
Bonus and Cash Gift 35,669
Terminal Leave Benefits 29
Personnel Economic Relief
Allowance 21,150
Additional Compensation of P500 under A.O. 53
Others 106,140
Total Other Compensation 202,863
01 Total Personal Services 608,063

=======
Maintenance and Other Operating Expenses
02 Traveling Expenses 139,611
03 Communication Services 22,514
04 Repair and Maintenance of Government Facilities 5,116
05 Repair and Maintenance of Government Vehicles 1,863
06 Transportation Services 178
07 Supplies and Materials 55,248
10 Grants/Subsidies/Contributions 940
14 Water/Illumination and Power 14,458
15 Social Security Benefits and Other Claims 325
17 Training and Seminars Expenses 7,236
18 Extraordinary and Miscellaneous Expenses 14,474
20 Anti-Insurgency/Contingency Emergency Expenses 9,400
23 Advertising and Publication 242
24 Fidelity Bonds and Insurance Premiums 1,420
29 Other Services 284,209
Total Maintenance and Other Operating Expenditures 557,234
Total Current Operating Expenditures 1,165,297

=======
(GAA of 1994, pp. 11-12)
The Special Provision Applicable to the Congress of the Philippines provides:
4. Realignment of Allocation for Operational Expenses. A member of
Congress may realign his allocation for operational expenses to any other
expenses category provide the total of said allocation is not exceeded. (GAA
of 1994, p. 14).
The appropriation for operating expenditures for each House is further divided into
expenditures for salaries, personal services, other compensation benefits, maintenance
expenses and other operating expenses. In turn, each member of Congress is allotted for his
own operating expenditure a proportionate share of the appropriation for the House to which
he belongs. If he does not spend for one items of expense, the provision in question allows
him to transfer his allocation in said item to another item of expense.
Petitioners assail the special provision allowing a member of Congress to realign his
allocation for operational expenses to any other expense category (Rollo, pp. 82-92),
claiming that this practice is prohibited by Section 25(5), Article VI of the Constitution. Said
section provides:
No law shall be passed authorizing any transfer of appropriations: however,
the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
The proviso of said Article of the Constitution grants the President of the Senate and the
Speaker of the House of Representatives the power to augment items in an appropriation act
for their respective offices from savings in other items of their appropriations, whenever there
is a law authorizing such augmentation.
The special provision on realignment of the operating expenses of members of Congress is
authorized by Section 16 of the General Provisions of the GAA of 1994, which provides:
Expenditure Components. Except by act of the Congress of the Philippines,
no change or modification shall be made in the expenditure items authorized
in this Act and other appropriation laws unless in cases
of augmentations from savings in appropriations as authorized under Section
25(5) of Article VI of the Constitution (GAA of 1994, p. 1273).
Petitioners argue that the Senate President and the Speaker of the House of
Representatives, but not the individual members of Congress are the ones authorized to
realign the savings as appropriated.
Under the Special Provisions applicable to the Congress of the Philippines, the members of
Congress only determine the necessity of the realignment of the savings in the allotments for
their operating expenses. They are in the best position to do so because they are the ones
who know whether there are savings available in some items and whether there are
deficiencies in other items of their operating expenses that need augmentation. However, it
is the Senate President and the Speaker of the House of Representatives, as the case may
be, who shall approve the realignment. Before giving their stamp of approval, these two
officials will have to see to it that:
(1) The funds to be realigned or transferred are actually savings in the items of expenditures
from which the same are to be taken; and
(2) The transfer or realignment is for the purposes of augmenting the items of expenditure to
which said transfer or realignment is to be made.
3. Highest Priority for Debt Service

While Congress appropriated P86,323,438,000.00 for debt service (Article XLVII of the GAA
of 1994), it appropriated only P37,780,450,000.00 for the Department of Education Culture
and Sports. Petitioners urged that Congress cannot give debt service the highest priority in
the GAA of 1994 (Rollo, pp. 93-94) because under the Constitution it should be education
that is entitled to the highest funding. They invoke Section 5(5), Article XIV thereof, which
provides:
(5) The State shall assign the highest budgetary priority to education and
ensure that teaching will attract and retain its rightful share of the best
available talents through adequate remuneration and other means of job
satisfaction and fulfillment.
This issue was raised in Guingona, Jr. v. Carague, 196 SCRA 221 (1991), where this Court
held that Section 5(5), Article XIV of the Constitution, is merely directory, thus:
While it is true that under Section 5(5), Article XIV of the Constitution,
Congress is mandated to "assign the highest budgetary priority to education"
in order to "insure that teaching will attract and retain its rightful share of the
best available talents through adequate remuneration and other means of job
satisfaction and fulfillment," it does not thereby follow that the hands of
Congress are so hamstrung as to deprive it the power to respond to the
imperatives of the national interest and for the attainment of other state
policies or objectives.
As aptly observed by respondents, since 1985, the budget for education has
tripled to upgrade and improve the facility of the public school system. The
compensation of teachers has been doubled. The amount of
P29,740,611,000.00 set aside for the Department of Education, Culture and
Sports under the General Appropriations Act (R.A. No. 6381), is the highest
budgetary allocation among all department budgets. This is a clear
compliance with the aforesaid constitutional mandate according highest
priority to education.
Having faithfully complied therewith, Congress is certainly not without any
power, guided only by its good judgment, to provide an appropriation, that
can reasonably service our enormous debt, the greater portion of which was
inherited from the previous administration. It is not only a matter of honor and
to protect the credit standing of the country. More especially, the very survival
of our economy is at stake. Thus, if in the process Congress appropriated an
amount for debt service bigger than the share allocated to education, the
Court finds and so holds that said appropriation cannot be thereby assailed
as unconstitutional.
G.R. No. 113105
G.R. No. 113174
Veto of Provision on Debt Ceiling
The Congress added a Special Provision to Article XLVIII (Appropriations for Debt Service) of
the GAA of 1994 which provides:
Special Provisions
1. Use of the Fund. The appropriation authorized herein shall be used for
payment of principal and interest of foreign and domestic
indebtedness; PROVIDED, That any payment in excess of the amount herein
appropriated shall be subject to the approval of the President of the
Philippines with the concurrence of the Congress of the
Philippines; PROVIDED, FURTHER, That in no case shall this fund be used
to pay for the liabilities of the Central Bank Board of Liquidators.
2. Reporting Requirement. The Bangko Sentral ng Pilipinas and the
Department of Finance shall submit a quarterly report of actual foreign and
domestic debt service payments to the House Committee on Appropriations
and Senate Finance Committee within one (1) month after each quarter (GAA
of 1944, pp. 1266).
The President vetoed the first Special Provision, without vetoing the P86,323,438,000.00
appropriation for debt service in said Article. According to the President's Veto Message:
IV. APPROPRIATIONS FOR DEBT SERVICE
I would like to emphasize that I concur fully with the desire of Congress to
reduce the debt burden by decreasing the appropriation for debt service as
well as the inclusion of the Special Provision quoted below. Nevertheless, I
believe that this debt reduction scheme cannot be validly done through the
1994 GAA. This must be addressed by revising our debt policy by way of
innovative and comprehensive debt reduction programs conceptualized
within the ambit of the Medium-Term Philippine Development Plan.
Appropriations for payment of public debt, whether foreign or domestic, are
automatically appropriated pursuant to the Foreign Borrowing Act and
Section 31 of P.D. No. 1177 as reiterated under Section 26, Chapter 4, Book
VI of E.O. No. 292, the Administrative Code of 1987. I wish to emphasize that
the constitutionality of such automatic provisions on debt servicing has been
upheld by the Supreme Court in the case of "Teofisto T. Guingona, Jr., and
Aquilino Q. Pimentel, Jr. v. Hon. Guillermo N. Carague, in his capacity as
Secretary of Budget and Management, et al.," G.R. No. 94571, dated April
22, 1991.
I am, therefore vetoing the following special provision for the reason that the
GAA is not the appropriate legislative measure to amend the provisions of the
Foreign Borrowing Act, P.D. No. 1177 and E.O. No. 292:
Use of the Fund. The appropriation authorized herein shall be
used for payment of principal and interest of foreign and
domestic indebtedness: PROVIDED, That any payment in
excess of the amount herein appropriated shall be subject to
the approval of the President of the Philippines with the
concurrence of the Congress of the
Philippines:PROVIDED, FURTHER, That in no case shall this
fund be used to pay for the liabilities of the Central Bank
Board of Liquidators (GAA of 1994, p. 1290).
Petitioners claim that the President cannot veto the Special Provision on the appropriation
for debt service without vetoing the entire amount of P86,323,438.00 for said purpose (Rollo,
G.R. No. 113105, pp. 93-98; Rollo, G.R. No. 113174, pp. 16-18). The Solicitor General
counterposed that the Special Provision did not relate to the item of appropriation for debt
service and could therefore be the subject of an item veto (Rollo, G.R. No. 113105, pp. 5460;Rollo, G.R. No. 113174, pp. 72-82).
This issue is a mere rehash of the one put to rest in Gonzales v. Macaraig, Jr., 191 SCRA
452 (1990). In that case, the issue was stated by the Court, thus:
The fundamental issue raised is whether or not the veto by the President of
Section 55 of the 1989 Appropriations Bill (Section 55
FY '89), and subsequently of its counterpart Section 16 of the 1990
Appropriations Bill (Section 16 FY '90), is unconstitutional and without effect.
The Court re-stated the issue, just so there would not be any misunderstanding about it,
thus:
The focal issue for resolution is whether or not the President exceeded the
item-veto power accorded by the Constitution. Or differently put, has the
President the power to veto "provisions" of an Appropriations Bill?
The bases of the petition in Gonzales, which are similar to those invoked in the present case,
are stated as follows:
In essence, petitioners' cause is anchored on the following grounds: (1) the
President's line-veto power as regards appropriation bills is limited to item/s
and does not cover provision/s; therefore, she exceeded her authority when
she vetoed Section 55 (FY '89) and Section 16 (FY '90) which are provisions;
(2) when the President objects to a provision of an appropriation bill, she
cannot exercise the item-veto power but should veto the entire bill; (3) the
item-veto power does not carry with it the power to strike out conditions or
restrictions for that would be legislation, in violation of the doctrine of
separation of powers; and (4) the power of augmentation in Article VI,
Section 25 [5] of the 1987 Constitution, has to be provided for by law and,
therefore, Congress is also vested with the prerogative to impose restrictions
on the exercise of that power.
The restrictive interpretation urged by petitioners that the President may not
veto a provision without vetoing the entire bill not only disregards the basic
principle that a distinct and severable part of a bill may be the subject of a
separate veto but also overlooks the Constitutional mandate that any
provision in the general appropriations bill shall relate specifically to some
particular appropriation therein and that any such provision shall be limited in
its operation to the appropriation to which it relates (1987 Constitution, Article
VI, Section 25 [2]). In other words, in the true sense of the term, a provision
in an Appropriations Bill is limited in its operation to some particular
appropriation to which it relates, and does not relate to the entire bill.
The Court went one step further and ruled that even assuming arguendo that "provisions"
are beyond the executive power to veto, and Section 55
(FY '89) and Section 16 (FY '90) were not "provisions" in the budgetary sense of the term,
they are "inappropriate provisions" that should be treated as "items" for the purpose of the
President's veto power.
The Court, citing Henry v. Edwards, La., 346 So. 2d 153 (1977), said that Congress cannot
include in a general appropriations bill matters that should be more properly enacted in
separate legislation, and if it does that, the inappropriate provisions inserted by it must be
treated as "item", which can be vetoed by the President in the exercise of his item-veto
power.
It is readily apparent that the Special Provision applicable to the appropriation for debt
service insofar as it refers to funds in excess of the amount appropriated in the bill, is an
"inappropriate" provision referring to funds other than the P86,323,438,000.00 appropriated
in the General Appropriations Act of 1991.
Likewise the vetoed provision is clearly an attempt to repeal Section 31 of P.D. No. 1177
(Foreign Borrowing Act) and E.O. No. 292, and to reverse the debt payment policy. As held
by the Court in Gonzales, the repeal of these laws should be done in a separate law, not in
the appropriations law.
The Court will indulge every intendment in favor of the constitutionality of a veto, the same
as it will presume the constitutionality of an act of Congress (Texas Co. v. State, 254 P. 1060;
31 Ariz, 485, 53 A.L.R. 258 [1927]).
The veto power, while exercisable by the President, is actually a part of the legislative
process (Memorandum of Justice Irene Cortes as Amicus Curiae, pp. 3-7). That is why it is
found in Article VI on the Legislative Department rather than in Article VII on the Executive
Department in the Constitution. There is, therefore, sound basis to indulge in the
presumption of validity of a veto. The burden shifts on those questioning the validity thereof
to show that its use is a violation of the Constitution.
Under his general veto power, the President has to veto the entire bill, not merely parts
thereof (1987 Constitution, Art. VI, Sec. 27[1]). The exception to the general veto power is
the power given to the President to veto any particular item or items in a general
appropriations bill (1987 Constitution, Art. VI,
Sec. 27[2]). In so doing, the President must veto the entire item.
A general appropriations bill is a special type of legislation, whose content is limited to
specified sums of money dedicated to a specific purpose or a separate fiscal unit (Beckman,
The Item Veto Power of the Executive,
31 Temple Law Quarterly 27 [1957]).
The item veto was first introduced by the Organic Act of the Philippines passed by the U.S.
Congress on August 29, 1916. The concept was adopted from some State Constitutions.
Cognizant of the legislative practice of inserting provisions, including conditions, restrictions
and limitations, to items in appropriations bills, the Constitutional Convention added the
following sentence to Section 20(2), Article VI of the 1935 Constitution:
. . . When a provision of an appropriation bill affect one or more items of the
same, the President cannot veto the provision without at the same time
vetoing the particular item or items to which it relates . . . .
In short, under the 1935 Constitution, the President was empowered to veto separately not
only items in an appropriations bill but also "provisions".
While the 1987 Constitution did not retain the aforementioned sentence added to Section
11(2) of Article VI of the 1935 Constitution, it included the following provision:
No provision or enactment shall be embraced in the general appropriations
bill unless it relates specifically to some particular appropriation therein. Any
such provision or enactment shall be limited in its operation to the
appropriation to which it relates (Art. VI, Sec. 25[2]).
In Gonzales, we made it clear that the omission of that sentence of Section 16(2) of the 1935
Constitution in the 1987 Constitution should not be interpreted to mean the disallowance of
the power of the President to veto a "provision".
As the Constitution is explicit that the provision which Congress can include in an
appropriations bill must "relate specifically to some particular appropriation therein" and "be
limited in its operation to the appropriation to which it relates," it follows that any provision
which does not relate to any particular item, or which extends in its operation beyond an item
of appropriation, is considered "an inappropriate provision" which can be vetoed separately
from an item. Also to be included in the category of "inappropriate provisions" are
unconstitutional provisions and provisions which are intended to amend other laws, because
clearly these kind of laws have no place in an appropriations bill. These are matters of
general legislation more appropriately dealt with in separate enactments. Former Justice
Irene Cortes, as Amicus Curiae, commented that Congress cannot by law establish
conditions for and regulate the exercise of powers of the President given by the Constitution
for that would be an unconstitutional intrusion into executive prerogative.
The doctrine of "inappropriate provision" was well elucidated in Henry v. Edwards,
supra., thus:
Just as the President may not use his item-veto to usurp constitutional
powers conferred on the legislature, neither can the legislature deprive the
Governor of the constitutional powers conferred on him as chief executive
officer of the state by including in a general appropriation bill matters more
properly enacted in separate legislation. The Governor's constitutional power
to veto bills of general legislation . . . cannot be abridged by the careful
placement of such measures in a general appropriation bill, thereby forcing
the Governor to choose between approving unacceptable substantive
legislation or vetoing "items" of expenditures essential to the operation of
government. The legislature cannot by location of a bill give it immunity from
executive veto. Nor can it circumvent the Governor's veto power over
substantive legislation by artfully drafting general law measures so that they
appear to be true conditions or limitations on an item of appropriation.
Otherwise, the legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of government in
contravention of the separation of powers doctrine . . . We are no more willing
to allow the legislature to use its appropriation power to infringe on the
Governor's constitutional right to veto matters of substantive legislation than
we are to allow the Governor to encroach on the Constitutional powers of the
legislature. In order to avoid this result, we hold that, when the legislature
inserts inappropriate provisions in a general appropriation bill, such
provisions must be treated as "items" for purposes of the Governor's item

veto power over general appropriation bills.
xxx xxx xxx
. . . Legislative control cannot be exercised in such a manner as to encumber
the general appropriation bill with veto-proof "logrolling measures", special
interest provisions which could not succeed if separately enacted, or "riders",
substantive pieces of legislation incorporated in a bill to insure passage
without veto . . . (Emphasis supplied).
Petitioners contend that granting arguendo that the veto of the Special Provision on the
ceiling for debt payment is valid, the President cannot automatically appropriate funds for
debt payment without complying with the conditions for automatic appropriation under the
provisions of R.A. No. 4860 as amended by P.D. No. 81 and the provisions of P.D. No. 1177
as amended by the Administrative Code of 1987 and P.D. No. 1967 (Rollo, G.R. No. 113766,
pp. 9-15).
Petitioners cannot anticipate that the President will not faithfully execute the laws. The writ of
prohibition will not issue on the fear that official actions will be done in contravention of the
laws.
The President vetoed the entire paragraph one of the Special Provision of the item on debt
service, including the provisions that the appropriation authorized in said item "shall be used
for payment of the principal and interest of foreign and domestic indebtedness" and that "in
no case shall this fund be used to pay for the liabilities of the Central Bank Board of
Liquidators." These provisions are germane to and have a direct connection with the item on
debt service. Inherent in the power of appropriation is the power to specify how the money
shall be spent (Henry v. Edwards, LA, 346 So., 2d., 153). The said provisos, being
appropriate provisions, cannot be vetoed separately. Hence the item veto of said provisions
is void.
We reiterate, in order to obviate any misunderstanding, that we are sustaining the veto of the
Special Provision of the item on debt service only with respect to the proviso therein
requiring that "any payment in excess of the amount herein, appropriated shall be subject to
the approval of the President of the Philippines with the concurrence of the Congress of the
Philippines . . ."
G.R. NO. 113174
G.R. NO. 113766
G.R. NO. 11388
1. Veto of provisions for revolving funds of SUC's.
In the appropriation for State Universities and Colleges (SUC's), the President vetoed special
provisions which authorize the use of income and the creation, operation and maintenance
of revolving funds. The Special Provisions vetoed are the following:
(H. 7) West Visayas State University
Equal Sharing of Income. Income earned by the University subject to Section

13 of the special provisions applicable to all State Universities and Colleges
shall be equally shared by the University and the University Hospital (GAA of
1994, p. 395).
xxx xxx xxx
(J. 3) Leyte State College
Revolving Fund for the Operation of LSC House and Human Resources
Development Center (HRDC). The income of Leyte State College derived
from the operation of its LSC House and HRDC shall be constituted into a
Revolving Fund to be deposited in an authorized government depository
bank for the operational expenses of these projects/services. The net income
of the Revolving Fund at the end of the year shall be remitted to the National
Treasury and shall accrue to the General Fund. The implementing guidelines
shall be issued by the Department of Budget and Management (GAA of
1994, p. 415).
The vetoed Special Provisions applicable to all SUC's are the following:
12. Use of Income from Extension Services. State Universities and Colleges
are authorized to use their income from their extension services. Subject to
the approval of the Board of Regents and the approval of a special budget
pursuant to Sec. 35, Chapter 5, Book VI of E.O.
No. 292, such income shall be utilized solely for faculty development,
instructional materials and work study program (GAA of 1994, p. 490).
xxx xxx xxx
13. Income of State Universities and Colleges. The income of State
Universities and Colleges derived from tuition fees and other sources as may
be imposed by governing boards other than those accruing to revolving funds
created under LOI Nos. 872 and 1026 and those authorized to be recorded
as trust receipts pursuant to Section 40, Chapter 5, Book VI of E.O. No. 292
shall be deposited with the National Treasury and recorded as a Special
Account in the General Fund pursuant to P.D. No. 1234 and P.D. No. 1437 for
the use of the institution, subject to Section 35, Chapter 5, Book VI of E.O.
No. 292L PROVIDED, That disbursements from the Special Account shall not
exceed the amount actually earned and
deposited: PROVIDED, FURTHER, That a cash advance on such income
may be allowed State half of income actually realized during the preceding
year and this cash advance shall be charged against income actually earned
during the budget year: AND PROVIDED, FINALLY, That in no case shall
such funds be used to create positions, nor for payment of salaries, wages or
allowances, except as may be specifically approved by the Department of
Budge and Management for income-producing activities, or to purchase
equipment or books, without the prior approval of the President of the
Philippines pursuant to Letter of Implementation No. 29.
All collections of the State Universities and Colleges for fees, charges and
receipts intended for private recipient units, including private foundations
affiliated with these institutions shall be duly acknowledged with official

receipts and deposited as a trust receipt before said income shall be subject
to Section 35, Chapter 5, Book VI of E.O. No. 292
(GAA of 1994, p. 490).
The President gave his reason for the veto thus:
Pursuant to Section 65 of the Government Auditing Code of the Philippines,
Section 44, Chapter 5, Book VI of E.O. No. 292, s. 1987 and Section 22,
Article VII of the Constitution, all income earned by all Government offices
and agencies shall accrue to the General Fund of the Government in line with
the One Fund Policy enunciated by Section 29 (1), Article VI and Section 22,
Article VII of the Constitution. Likewise, the creation and establishment of
revolving funds shall be authorized by substantive law pursuant to Section 66
of the Government Auditing Code of the Philippines and Section 45, Chapter
5, Book VI of E.O. No. 292.
Notwithstanding the aforementioned provisions of the Constitution and
existing law, I have noted the proliferation of special provisions authorizing
the use of agency income as well as the creation, operation and maintenance
of revolving funds.
I would like to underscore the facts that such income were already
considered as integral part of the revenue and financing sources of the
National Expenditure Program which I previously submitted to Congress.
Hence, the grant of new special provisions authorizing the use of agency
income and the establishment of revolving funds over and above the agency
appropriations authorized in this Act shall effectively reduce the financing
sources of the 1994 GAA and, at the same time, increase the level of
expenditures of some agencies beyond the well-coordinated, rationalized
levels for such agencies. This corresponding increases the overall deficit of
the National Government (Veto Message, p. 3).
Petitioners claim that the President acted with grave abuse of discretion when he disallowed
by his veto the "use of income" and the creation of "revolving fund" by the Western Visayas
State University and Leyte State Colleges when he allowed other government offices, like
the National Stud Farm, to use their income for their operating expenses (Rollo, G.R. No.
113174, pp. 15-16).
There was no undue discrimination when the President vetoed said special provisions while
allowing similar provisions in other government agencies. If some government agencies
were allowed to use their income and maintain a revolving fund for that purpose, it is
because these agencies have been enjoying such privilege before by virtue of the special
laws authorizing such practices as exceptions to the "one-fund policy" (e.g., R.A. No. 4618
for the National Stud Farm, P.D. No. 902-A for the Securities and Exchange Commission;
E.O. No. 359 for the Department of Budget and Management's Procurement Service).
2. Veto of provision on 70% (administrative)/30% (contract) ratio for road
maintenance.
In the appropriation for the Department of Public Works and Highways, the President vetoed
the second paragraph of Special Provision No. 2, specifying the 30% maximum ration of
works to be contracted for the maintenance of national roads and bridges. The said
paragraph reads as follows:
2. Release and Use of Road Maintenance Funds. Funds allotted for the
maintenance and repair of roads which are provided in this Act for the
Department of Public Works and Highways shall be released to the
respective Engineering District, subject to such rules and regulations as may
be prescribed by the Department of Budget and Management. Maintenance
funds for roads and bridges shall be exempt from budgetary reserve.
Of the amount herein appropriated for the maintenance of national roads and
bridges, a maximum of thirty percent (30%) shall be contracted out in
accordance with guidelines to be issued by the Department of Public Works
and Highways. The balance shall be used for maintenance by force account.
Five percent (5%) of the total road maintenance fund appropriated herein to
be applied across the board to the allocation of each region shall be set aside
for the maintenance of roads which may be converted to or taken over as
national roads during the current year and the same shall be released to the
central office of the said department for eventual
sub-allotment to the concerned region and district: PROVIDED, That any
balance of the said five percent (5%) shall be restored to the regions on
a pro-rata basis for the maintenance of existing national roads.
No retention or deduction as reserves or overhead expenses shall be made,
except as authorized by law or upon direction of the President
(GAA of 1994, pp. 785-786; Emphasis supplied).
The President gave the following reason for the veto:
While I am cognizant of the well-intended desire of Congress to impose
certain restrictions contained in some special provisions, I am equally aware
that many programs, projects and activities of agencies would require some
degree of flexibility to ensure their successful implementation and therefore
risk their completion. Furthermore, not only could these restrictions and
limitations derail and impede program implementation but they may also
result in a breach of contractual obligations.
D.1.a. A study conducted by the Infrastructure Agencies show that for
practical intent and purposes, maintenance by contract could be undertaken
to an optimum of seventy percent (70%) and the remaining thirty percent
(30%) by force account. Moreover, the policy of maximizing implementation
through contract maintenance is a covenant of the Road and Road Transport
Program Loan from the Asian Development Bank (ADB Loan No. 1047-PHI1990) and Overseas Economic Cooperation Fund (OECF Loan No. PH-C17199). The same is a covenant under the World Bank (IBRD) Loan for the
Highway Management Project (IBRD Loan
No. PH-3430) obtained in 1992.
In the light of the foregoing and considering the policy of the government to
encourage and maximize private sector participation in the regular repair and
maintenance of infrastructure facilities, I am directly vetoing the underlined
second paragraph of Special Provision No. 2 of the Department of Public

Works and Highways (Veto Message, p. 11).
The second paragraph of Special Provision No. 2 brings to fore the divergence in policy of
Congress and the President. While Congress expressly laid down the condition that only
30% of the total appropriation for road maintenance should be contracted out, the President,
on the basis of a comprehensive study, believed that contracting out road maintenance
projects at an option of 70% would be more efficient, economical and practical.
The Special Provision in question is not an inappropriate provision which can be the subject
of a veto. It is not alien to the appropriation for road maintenance, and on the other hand, it
specified how the said item shall be expended 70% by administrative and 30% by
contract.
The 1987 Constitution allows the addition by Congress of special provisions, conditions to
items in an expenditure bill, which cannot be vetoed separately from the items to which they
relate so long as they are "appropriate" in the budgetary sense (Art. VII, Sec. 25[2]).
The Solicitor General was hard put in justifying the veto of this special provision. He merely
argued that the provision is a complete turnabout from an entrenched practice of the
government to maximize contract maintenance (Rollo, G.R. No. 113888, pp. 85-86). That is
not a ground to veto a provision separate from the item to which it refers.
The veto of the second paragraph of Special Provision No. 2 of the item for the DPWH is
therefore unconstitutional.
3. Veto of provision on purchase of medicines by AFP.
In the appropriation for the Armed Forces of the Philippines (AFP), the President vetoed the
special provision on the purchase by the AFP of medicines in compliance with the Generics
Drugs Law (R.A. No. 6675). The vetoed provision reads:
12. Purchase of Medicines. The purchase of medicines by all Armed Forces
of the Philippines units, hospitals and clinics shall strictly comply with the
formulary embodied in the National Drug Policy of the Department of Health
(GAA of 1994, p. 748).
According to the President, while it is desirable to subject the purchase of medicines to a
standard formulary, "it is believed more prudent to provide for a transition period for its
adoption and smooth implementation in the Armed Forces of the Philippines" (Veto Message,
p. 12).
The Special Provision which requires that all purchases of medicines by the AFP should
strictly comply with the formulary embodied in the National Drug Policy of the Department of
Health is an "appropriate" provision. it is a mere advertence by Congress to the fact that
there is an existing law, the Generics Act of 1988, that requires "the extensive use of drugs
with generic names through a rational system of procurement and distribution." The
President believes that it is more prudent to provide for a transition period for the smooth
implementation of the law in the case of purchases by the Armed Forces of the Philippines,
as implied by Section 11 (Education Drive) of the law itself. This belief, however, cannot
justify his veto of the provision on the purchase of medicines by the AFP.
Being directly related to and inseparable from the appropriation item on purchases of
medicines by the AFP, the special provision cannot be vetoed by the President without also
vetoing the said item (Bolinao Electronics Corporation v. Valencia, 11 SCRA 486 [1964]).
4. Veto of provision on prior approval of Congress for purchase of military equipment.
In the appropriation for the modernization of the AFP, the President vetoed the underlined
proviso of Special Provision No. 2 on the "Use of Fund," which requires the prior approval of
Congress for the release of the corresponding modernization funds, as well as the entire
Special Provisions
No. 3 on the "Specific Prohibition":
2. Use of the Fund. Of the amount herein appropriated, priority shall be given
for the acquisition of AFP assets necessary for protecting marine, mineral,
forest and other resources within Philippine territorial borders and its
economic zone, detection, prevention or deterrence of air or surface
intrusions and to support diplomatic moves aimed at preserving national
dignity, sovereignty and patrimony: PROVIDED, That the said modernization
fund shall not be released until a Table of Organization and Equipment for FY
1994-2000 is submitted to and approved by Congress.
3. Specific Prohibition. The said Modernization Fund shall not be used for
payment of six (6) additional S-211 Trainer planes, 18 SF-260 Trainer planes
and 150 armored personnel carriers (GAA of 1994, p. 747).
As reason for the veto, the President stated that the said condition and prohibition violate the
Constitutional mandate of non-impairment of contractual obligations, and if allowed, "shall
effectively alter the original intent of the AFP Modernization Fund to cover all military
equipment deemed necessary to modernize the Armed Forces of the Philippines" (Veto
Message, p. 12).
Petitioners claim that Special Provision No. 2 on the "Use of Fund" and Special Provision No.
3 are conditions or limitations related to the item on the AFP modernization plan.
The requirement in Special Provision No. 2 on the "Use of Fund" for the AFP modernization
program that the President must submit all purchases of military equipment to Congress for
its approval, is an exercise of the "congressional or legislative veto." By way of definition, a
congressional veto is a means whereby the legislature can block or modify administrative
action taken under a statute. It is a form of legislative control in the implementation of
particular executive actions. The form may be either negative, that is requiring disapproval of
the executive action, or affirmative, requiring approval of the executive action. This device
represents a significant attempt by Congress to move from oversight of the executive to
shared administration (Dixon, The Congressional Veto and Separation of Powers: The
Executive on a Leash,
56 North Carolina Law Review, 423 [1978]).
A congressional veto is subject to serious questions involving the principle of separation of
powers.
However the case at bench is not the proper occasion to resolve the issues of the validity of
the legislative veto as provided in Special Provisions Nos. 2 and 3 because the issues at
hand can be disposed of on other grounds. Any provision blocking an administrative action in
implementing a law or requiring legislative approval of executive acts must be incorporated

in a separate and substantive bill. Therefore, being "inappropriate" provisions, Special
Provisions Nos. 2 and 3 were properly vetoed.
As commented by Justice Irene Cortes in her memorandum as Amicus Curiae: "What
Congress cannot do directly by law it cannot do indirectly by attaching conditions to the
exercise of that power (of the President as Commander-in-Chief) through provisions in the
appropriation law."
Furthermore, Special Provision No. 3, prohibiting the use of the Modernization Funds for
payment of the trainer planes and armored personnel carriers, which have been contracted
for by the AFP, is violative of the Constitutional prohibition on the passage of laws that impair
the obligation of contracts (Art. III, Sec. 10), more so, contracts entered into by the
Government itself.
The veto of said special provision is therefore valid.
5. Veto of provision on use of savings to augment AFP pension funds.
In the appropriation for the AFP Pension and Gratuity Fund, the President vetoed the new
provision authorizing the Chief of Staff to use savings in the AFP to augment pension and
gratuity funds. The vetoed provision reads:
2. Use of Savings. The Chief of Staff, AFP, is authorized, subject to the
approval of the Secretary of National Defense, to use savings in the
appropriations provided herein to augment the pension fund being managed
by the AFP Retirement and Separation Benefits System as provided under
Sections 2(a) and 3 of P.D. No. 361 (GAA of 1994,
p. 746).
According to the President, the grant of retirement and separation benefits should be
covered by direct appropriations specifically approved for the purpose pursuant to Section
29(1) of Article VI of the Constitution. Moreover, he stated that the authority to use savings is
lodged in the officials enumerated in Section 25(5) of Article VI of the Constitution (Veto
Message, pp. 7-8).
Petitioners claim that the Special Provision on AFP Pension and Gratuity Fund is a condition
or limitation which is so intertwined with the item of appropriation that it could not be
separated therefrom.
The Special Provision, which allows the Chief of Staff to use savings to augment the pension
fund for the AFP being managed by the AFP Retirement and Separation Benefits System is
violative of Sections 25(5) and 29(1) of the Article VI of the Constitution.
Under Section 25(5), no law shall be passed authorizing any transfer of appropriations, and
under Section 29(1), no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law. While Section 25(5)
allows as an exception the realignment of savings to augment items in the general
appropriations law for the executive branch, such right must and can be exercised only by
the President pursuant to a specific law.
6. Condition on the deactivation of the CAFGU's.

Congress appropriated compensation for the CAFGU's, including the payment of separation
benefits but it added the following Special Provision:
1. CAFGU Compensation and Separation Benefit. The appropriation
authorized herein shall be used for the compensation of CAFGU's including
the payment of their separation benefit not exceeding one (1) year
subsistence allowance for the 11,000 members who will be deactivated in
1994. The Chief of Staff, AFP, shall, subject to the approval of the Secretary
of National Defense, promulgate policies and procedures for the payment of
separation benefit (GAA of 1994, p. 740).
The President declared in his Veto Message that the implementation of this Special Provision
to the item on the CAFGU's shall be subject to prior Presidential approval pursuant to P.D.
No. 1597 and R.A.. No. 6758. He gave the following reasons for imposing the condition:
I am well cognizant of the laudable intention of Congress in proposing the
amendment of Special Provision No. 1 of the CAFGU. However, it is
premature at this point in time of our peace process to earmark and declare
through special provision the actual number of CAFGU members to be
deactivated in CY 1994. I understand that the number to be deactivated
would largely depend on the result or degree of success of the on-going
peace initiatives which are not yet precisely determinable today. I have
desisted, therefore, to directly veto said provisions because this would mean
the loss of the entire special provision to the prejudice of its beneficient
provisions. I therefore declare that the actual implementation of this special
provision shall be subject to prior Presidential approval pursuant to the
provisions of P.D. No. 1597 and
R.A. No. 6758 (Veto Message, p. 13).
Petitioners claim that the Congress has required the deactivation of the CAFGU's when it
appropriated the money for payment of the separation pay of the members of thereof. The
President, however, directed that the deactivation should be done in accordance to his
timetable, taking into consideration the peace and order situation in the affected localities.
Petitioners complain that the directive of the President was tantamount to an administrative
embargo of the congressional will to implement the Constitution's command to dissolve the
CAFGU's (Rollo, G.R. No. 113174,
p. 14; G.R. No. 113888, pp. 9, 14-16). They argue that the President cannot impair or
withhold expenditures authorized and appropriated by Congress when neither the
Appropriations Act nor other legislation authorize such impounding (Rollo, G.R. No. 113888,
pp. 15-16).
The Solicitor General contends that it is the President, as Commander-in-Chief of the Armed
Forces of the Philippines, who should determine when the services of the CAFGU's are no
longer needed (Rollo, G.R. No. 113888,
pp. 92-95.).
This is the first case before this Court where the power of the President to impound is put in
issue. Impoundment refers to a refusal by the President, for whatever reason, to spend funds
made available by Congress. It is the failure to spend or obligate budget authority of any type
(Notes: Impoundment of Funds, 86 Harvard Law Review 1505 [1973]).
Those who deny to the President the power to impound argue that once Congress has set
aside the fund for a specific purpose in an appropriations act, it becomes mandatory on the
part of the President to implement the project and to spend the money appropriated therefor.
The President has no discretion on the matter, for the Constitution imposes on him the duty
to faithfully execute the laws.
In refusing or deferring the implementation of an appropriation item, the President in effect
exercises a veto power that is not expressly granted by the Constitution. As a matter of fact,
the Constitution does not say anything about impounding. The source of the Executive
authority must be found elsewhere.
Proponents of impoundment have invoked at least three principal sources of the authority of
the President. Foremost is the authority to impound given to him either expressly or impliedly
by Congress. Second is the executive power drawn from the President's role as
Commander-in-Chief. Third is the Faithful Execution Clause which ironically is the same
provision invoked by petitioners herein.
The proponents insist that a faithful execution of the laws requires that the President desist
from implementing the law if doing so would prejudice public interest. An example given is
when through efficient and prudent management of a project, substantial savings are made.
In such a case, it is sheer folly to expect the President to spend the entire amount budgeted
in the law (Notes: Presidential Impoundment: Constitutional Theories and Political Realities,
61 Georgetown Law Journal 1295 [1973]; Notes; Protecting the Fisc: Executive
Impoundment and Congressional Power, 82 Yale Law Journal 1686 [1973).
We do not find anything in the language used in the challenged Special Provision that would
imply that Congress intended to deny to the President the right to defer or reduce the
spending, much less to deactivate 11,000 CAFGU members all at once in 1994. But even if
such is the intention, the appropriation law is not the proper vehicle for such purpose. Such
intention must be embodied and manifested in another law considering that it abrades the
powers of the Commander-in-Chief and there are existing laws on the creation of the
CAFGU's to be amended. Again we state: a provision in an appropriations act cannot
be used to repeal or amend other laws, in this case, P.D. No. 1597 and R.A. No. 6758.
7. Condition on the appropriation for the Supreme Court, etc.
(a) In the appropriations for the Supreme Court, Ombudsman, COA, and CHR, the Congress
added the following provisions:
The Judiciary
xxx xxx xxx
Special Provisions
1. Augmentation of any Item in the Court's Appropriations. Any savings in the
appropriations for the Supreme Court and the Lower Courts may be utilized
by the Chief Justice of the Supreme Court to augment any item of the Court's
appropriations for (a) printing of decisions and publication of "Philippine

Reports"; (b) Commutable terminal leaves of Justices and other personnel of
the Supreme Court and payment of adjusted pension rates to retired Justices
entitled thereto pursuant to Administrative Matter No. 91-8-225-C.A.; (c)
repair, maintenance, improvement and other operating expenses of the
courts' libraries, including purchase of books and periodicals; (d) purchase,
maintenance and improvement of printing equipment; (e) necessary
expenses for the employment of temporary employees, contractual and
casual employees, for judicial administration; (f) maintenance and
improvement of the Court's Electronic Data
Processing System; (g) extraordinary expenses of the Chief Justice,
attendance in international conferences and conduct of training programs; (h)
commutable transportation and representation allowances and fringe benefits
for Justices, Clerks of Court, Court Administrator, Chiefs of Offices and other
Court personnel in accordance with the rates prescribed by law; and (i)
compensation of attorney-de-officio: PROVIDED, That as mandated by LOI
No. 489 any increase in salary and allowances shall be subject to the usual
procedures and policies as provided for under
P.D. No. 985 and other pertinent laws (GAA of 1994, p. 1128; Emphasis
supplied).
xxx xxx xxx
Commission on Audit
xxx xxx xxx
5. Use of Savings. The Chairman of the Commission on Audit is hereby
authorized, subject to appropriate accounting and auditing rules and
regulations, to use savings for the payment of fringe benefits as may be
authorized by law for officials and personnel of the Commission (GAA of
1994, p. 1161; Emphasis supplied).
xxx xxx xxx
Office of the Ombudsman
xxx xxx xxx
6. Augmentation of Items in the appropriation of the Office of the
Ombudsman. The Ombudsman is hereby authorized, subject to appropriate
accounting and auditing rules and regulations to augment items of
appropriation in the Office of the Ombudsman from savings in other items of
appropriation actually released, for: (a) printing and/or publication of
decisions, resolutions, training and information materials; (b) repair,
maintenance and improvement of OMB Central and Area/Sectoral facilities;
(c) purchase of books, journals, periodicals and equipment;
(d) payment of commutable representation and transportation allowances of
officials and employees who by reason of their positions are entitled thereto
and fringe benefits as may be authorized specifically by law for officials and
personnel of OMB pursuant to Section 8 of Article IX-B of the Constitution;
and (e) for other official purposes subject to accounting and auditing rules
and regulations (GAA of 1994, p. 1174; Emphasis supplied).
xxx xxx xxx
Commission on Human Rights
xxx xxx xxx
1. Use of Savings. The Chairman of the Commission on Human Rights
(CHR) is hereby authorized, subject to appropriate accounting and auditing
rules and regulations, to augment any item of appropriation in the office of
the CHR from savings in other items of appropriations actually released, for:
(a) printing and/or publication of decisions, resolutions, training materials and
educational publications; (b) repair, maintenance and improvement of
Commission's central and regional facilities; (c) purchase of books, journals,
periodicals and equipment, (d) payment of commutable representation and
transportation allowances of officials and employees who by reason of their
positions are entitled thereto and fringe benefits, as may be authorized by
law for officials and personnel of CHR, subject to accounting and auditing
rules and regulations (GAA of 1994, p. 1178; Emphasis supplied).
In his Veto Message, the President expressed his approval of the conditions included in the
GAA of 1994. He noted that:
The said condition is consistent with the Constitutional injunction prescribed
under Section 8, Article IX-B of the Constitution which states that "no elective
or appointive public officer or employee shall receive additional, double, or
indirect compensation unless specifically authorized by law." I am, therefore,
confident that the heads of the said offices shall maintain fidelity to the law
and faithfully adhere to the well-established principle on compensation
standardization (Veto Message, p. 10).
Petitioners claim that the conditions imposed by the President violated the independence
and fiscal autonomy of the Supreme Court, the Ombudsman, the COA and the CHR.
In the first place, the conditions questioned by petitioners were placed in the GAB by
Congress itself, not by the President. The Veto Message merely highlighted the
Constitutional mandate that additional or indirect compensation can only be given pursuant
to law.
In the second place, such statements are mere reminders that the disbursements of
appropriations must be made in accordance with law. Such statements may, at worse, be
treated as superfluities.
(b) In the appropriation for the COA, the President imposed the condition that the
implementation of the budget of the COA be subject to "the guidelines to be issued by the
President."
The provisions subject to said condition reads:
xxx xxx xxx

3. Revolving Fund. The income of the Commission on Audit derived from
sources authorized by the Government Auditing Code of the Philippines (P.D.
No. 1445) not exceeding Ten Million Pesos (P10,000,000) shall be
constituted into a revolving fund which shall be used for maintenance,
operating and other incidental expenses to enhance audit services and auditrelated activities. The fund shall be deposited in an authorized government
depository ban, and withdrawals therefrom shall be made in accordance with
the procedure prescribed by law and implementing rules and
regulations: PROVIDED,That any interests earned on such deposit shall be
remitted at the end of each quarter to the national Treasury and shall accrue
to the General Fund: PROVIDED FURTHER, That the Commission on Audit
shall submit to the Department of Budget and Management a quarterly report
of income and expenditures of said revolving fund (GAA of 1994, pp. 11601161).
The President cited the "imperative need to rationalize" the implementation, applicability and
operation of use of income and revolving funds. The Veto Message stated:
. . . I have observed that there are old and long existing special provisions
authorizing the use of income and the creation of revolving funds. As a rule,
such authorizations should be discouraged. However, I take it that these
authorizations have legal/statutory basis aside from being already a vested
right to the agencies concerned which should not be jeopardized through the
Veto Message. There is, however, imperative need to rationalize their
implementation, applicability and operation. Thus, in order to substantiate the
purpose and intention of said provisions, I hereby declare that the
operationalization of the following provisions during budget implementation
shall be subject to theguidelines to be issued by the President pursuant to
Section 35, Chapter 5, Book VI of E.O. No. 292 and Sections 65 and 66 of
P.D. No. 1445 in relation to Sections 2 and 3 of the General Provisions of this
Act (Veto Message, p. 6; Emphasis Supplied.)
(c) In the appropriation for the DPWH, the President imposed the condition that in the
implementation of DPWH projects, the administrative and engineering overhead of 5% and
3% "shall be subject to the necessary administrative guidelines to be formulated by the
Executive pursuant to existing laws." The condition was imposed because the provision
"needs further study" according to the President.
The following provision was made subject to said condition:
9. Engineering and Administrative Overhead. Not more than five percent
(5%) of the amount for infrastructure project released by the Department of
Budget and Management shall be deducted by DPWH for administrative
overhead, detailed engineering and construction supervision, testing and
quality control, and the like, thus insuring that at least ninety-five percent
(95%) of the released fund is available for direct implementation of the
project. PROVIDED, HOWEVER, That for school buildings, health centers,
day-care centers and barangay halls, the deductible amount shall not exceed
three percent (3%).
Violation of, or non-compliance with, this provision shall subject the

government official or employee concerned to administrative, civil and/or
criminal sanction under Sections 43 and 80, Book VI of E.O.
No. 292 (GAA of 1994, p. 786).
(d) In the appropriation for the National Housing Authority (NHA), the President imposed the
condition that allocations for specific projects shall be released and disbursed "in accordance
with the housing program of the government, subject to prior Executive approval."
The provision subject to the said condition reads:
3. Allocations for Specified Projects. The following allocations for the
specified projects shall be set aside for corollary works and used exclusively
for the repair, rehabilitation and construction of buildings, roads, pathwalks,
drainage, waterworks systems, facilities and amenities in the
area: PROVIDED, That any road to be constructed or rehabilitated shall
conform with the specifications and standards set by the Department of
Public Works and Highways for such kind of
road: PROVIDED, FURTHER, That savings that may be available in the
future shall be used for road repair, rehabilitation and construction:
(1) Maharlika Village Road Not less than
P5,000,000
(2) Tenement Housing Project (Taguig) Not
less than P3,000,000
(3) Bagong Lipunan Condominium Project
(Taguig) Not less than P2,000,000
4. Allocation of Funds. Out of the amount appropriated for the implementation
of various projects in resettlement areas, Seven Million Five Hundred
Thousand Pesos (P7,500,000) shall be allocated to the Dasmarias Bagong
Bayan resettlement area, Eighteen Million Pesos (P18,000,000) to the
Carmona Relocation Center Area (Gen. Mariano Alvarez) and Three Million
Pesos (P3,000,000) to the Bulihan Sites and Services, all of which will be for
the cementing of roads in accordance with DPWH standards.
5. Allocation for Sapang Palay. An allocation of Eight Million Pesos
(P8,000,000) shall be set aside for the asphalting of seven (7) kilometer main
road of Sapang Palay, San Jose Del Monte, Bulacan
(GAA of 1994, p. 1216).
The President imposed the conditions: (a) that the "operationalization" of the special
provision on revolving funds of the COA "shall be subject to guidelines to be issued by the
President pursuant to Section 35, Chapter 5,
Book VI of E.O. 292 and Sections 65 and 66 of P.D. No. 1445 in relation to Sections 2 and 3
of the General Provisions of this Act" (Rollo, G.R.
No. 113174, pp. 5,7-8); (b) that the implementation of Special Provision No. 9 of the DPWH
on the mandatory retention of 5% and 3% of the amounts released by said Department "be
subject to the necessary administrative guidelines to be formulated by the Executive
pursuant to existing law" (Rollo, G.R. No. 113888; pp. 10, 14-16); and (c) that the
appropriations authorized for the NHA can be released only "in accordance with the housing
program of the government subject to prior Executive approval" (Rollo, G.R. No. 113888, pp.
10-11;
14-16).
The conditions objected to by petitioners are mere reminders that the implementation of the
items on which the said conditions were imposed, should be done in accordance with
existing laws, regulations or policies. They did not add anything to what was already in place
at the time of the approval of the GAA of 1994.
There is less basis to complain when the President said that the expenditures shall be
subject to guidelines he will issue. Until the guidelines are issued, it cannot be determined
whether they are proper or inappropriate. The issuance of administrative guidelines on the
use of public funds authorized by Congress is simply an exercise by the President of his
constitutional duty to see that the laws are faithfully executed (1987 Constitution, Art. VII,
Sec. 17; Planas v. Gil 67 Phil. 62 [1939]). Under the Faithful Execution Clause, the President
has the power to take "necessary and proper steps" to carry into execution the law
(Schwartz, On Constitutional Law, p. 147 [1977]). These steps are the ones to be embodied
in the guidelines.
IV
Petitioners chose to avail of the special civil actions but those remedies can be used only
when respondents have acted "without or in excess" of jurisdiction, or "with grave abuse of
discretion," (Revised Rules of Court,
Rule 65, Section 2). How can we begrudge the President for vetoing the Special Provision
on the appropriation for debt payment when he merely followed our decision in Gonzales?
How can we say that Congress has abused its discretion when it appropriated a bigger sum
for debt payment than the amount appropriated for education, when it merely followed our
dictum in Guingona?
Article 8 of the Civil Code of Philippines, provides:
Judicial decisions applying or interpreting the laws or the constitution shall
from a part of the legal system of the Philippines.
The Court's interpretation of the law is part of that law as of the date of its enactment since
the court's interpretation merely establishes the contemporary legislative intent that the
construed law purports to carry into effect (People v. Licera, 65 SCRA 270 [1975]). Decisions
of the Supreme Court assume the same authority as statutes (Floresca v. Philex Mining
Corporation, 136 SCRA 141 [1985]).
Even if Guingona and Gonzales are considered hard cases that make bad laws and should
be reversed, such reversal cannot nullify prior acts done in reliance thereof.
WHEREFORE, the petitions are DISMISSED, except with respect to
(1) G.R. Nos. 113105 and 113766 only insofar as they pray for the annulment of the veto of
the special provision on debt service specifying that the fund therein appropriated "shall be
used for payment of the principal and interest of foreign and domestic indebtedness"
prohibiting the use of the said funds "to pay for the liabilities of the Central Bank Board of
Liquidators", and (2) G.R. No. 113888 only insofar as it prays for the annulment of the veto
of: (a) the second paragraph of Special Provision No. 2 of the item of appropriation for the
Department of Public Works and Highways (GAA of 1994, pp. 785-786); and (b) Special
Provision No. 12 on the purchase of medicines by the Armed Forces of the Philippines (GAA
of 1994, p. 748), which is GRANTED.
SO ORDERED.
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Kapunan and Mendoza, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:

I concur with the ponencia of Mr. Justice Camilo D. Quiason except in so far as it re-affirms
the Court's decision inGonzalez v. Macaraig (191 SCRA 452).
Sec. 27(2), Art. VI of the Constitution states:
The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not effect the item or
items to which he does not object.
In my dissenting opinion in Gonzalez, I stated that:
The majority opinion positions the veto questioned in this case within the
scope of Section 27(2) [Article VI of the Constitution]. I do not see how this
can be done without doing violence to the constitutional design. The
distinction between an item-veto and a provision veto has been traditionally
recognized in constitutional litigation and budgetary practice. As stated by Mr.
Justice Sutherland, speaking for the U.S. Supreme Court in Bengzon
v. Secretary of Justice, 299 U.S. 410-416:
. . . An item of an appropriation bill obviously means an item
which in itself is a specific appropriation of money, not some
general provisions of law which happens to be put into an
appropriation bill . . .
When the Constitution in Section 27(2) empowers the President to veto any
particular item or items in the appropriation act, it does not
confer in fact, it excludes the power to veto any particular provision or
provisions in said act.
In an earlier case, Sarmiento v. Mison, et al., 156 SCRA 549, this court
referred to its duty to construe the Constitution, not in accordance with how
the executive or the legislative would want it construed, but in accordance
with what it says and provides. When the Constitution states that the
President has the power to veto any particular item or items in the
appropriation act, this must be taken as a component of that delicate balance
of power between the executive and legislative, so that, for this Court to
construe Sec. 27(2) of the Constitution as also empowering the President to
veto any particular provision or provisions in the appropriations act, is to load
the scale in favor of the executive, at the expense of that delicate balance of
power.
I therefore disagree with the majority's pronouncements which would validate the veto by the
President of specific provisions in the appropriations act based on the contention that such
are "inappropriate provisions." Even assuming, for the sake of argument, that a provision in
the appropriations act is "inappropriate" from the Presidential standpoint, it is still
a provision, not an item, in an appropriations act and, therefore, outside the veto power of
the Executive.
VITUG, J., concurring:
I concur on the points so well expounded by a most respected colleague, Mr. Justice Camilo
D. Quiason. I should like to highlight a bit, however, that part of the ponencia dealing on the
Countrywide Development Fund or, so commonly referred to as, the infamous "pork barrel".
I agree that it lies with Congress to determine in an appropriation act the activities and the
projects that are desirable and may thus be funded. Once, however, such identification and
the corresponding appropriation therefore is done, the legislative act is completed and it
ends there. Thereafter, the Executive is behooved, with exclusive responsibility and authority,
to see to it that the legislative will is properly carried out. I cannot subscribe to another theory
invoked by some quarters that, in so implementing the law, the Executive does so only by
way of delegation. Congress neither may delegate what it does not have nor may encroach
on the powers of a co-equal, independent and coordinate branch.
Within its own sphere, Congress acts as a body, not as the individuals that comprise it, in
any action or decision that can bind it, or be said to have been done by it, under its
constitutional authority. Even assuming that overseeing the laws it enacts continues to be a
legislative process, one that I find difficult to accept, it is Congress itself, not any of its
members, that must exercise that function.
I cannot debate the fact that the members of Congress, more than the President and his
colleagues, would have the best feel on the needs of their own respective cosntituents. I see
no legal obstacle, however, in their making, just like anyone else, the proper
recommendations to albeit not necessarily conclusive on, the President for the purpose.
Neother would it be objectionable for Congrss, by law, to appropriate funds for specific
projects as it may be minded; to give that authoriy, however, to the individual members of
Congress in whatever guise, I am afraid, would be constitutionality impermissible.
# Separate Opinions
PADILLA, J., concurring and dissenting:
I concur with the ponencia of Mr. Justice Camilo D. Quiason except in so far as it re-affirms
the Court's decision inGonzalez v. Macaraig (191 SCRA 452).
Sec. 27(2), Art. VI of the Constitution states:
The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not effect the item or
items to which he does not object.
In my dissenting opinion in Gonzalez, I stated that:
The majority opinion positions the veto questioned in this case within the
scope of Section 27(2) [Article VI of the Constitution]. I do not see how this
can be done without doing violence to the constitutional design. The
distinction between an item-veto and a provision veto has been traditionally
recognized in constitutional litigation and budgetary practice. As stated by Mr.
Justice Sutherland, speaking for the U.S. Supreme Court in Bengzon
v. Secretary of Justice, 299 U.S. 410-416:
. . . An item of an appropriation bill obviously means an item
which in itself is a specific appropriation of money, not some
general provisions of law which happens to be put into an
appropriation bill . . .
When the Constitution in Section 27(2) empowers the President to veto any
particular item or items in the appropriation act, it does not
confer in fact, it excludes the power to veto any particular provision or
provisions in said act.
In an earlier case, Sarmiento v. Mison, et al., 156 SCRA 549, this court
referred to its duty to construe the Constitution, not in accordance with how
the executive or the legislative would want it construed, but in accordance
with what it says and provides. When the Constitution states that the
President has the power to veto any particular item or items in the
appropriation act, this must be taken as a component of that delicate balance
of power between the executive and legislative, so that, for this Court to
construe Sec. 27(2) of the Constitution as also empowering the President to
veto any particular provision or provisions in the appropriations act, is to load
the scale in favor of the executive, at the expense of that delicate balance of
power.
I therefore disagree with the majority's pronouncements which would validate the veto by the
President of specific provisions in the appropriations act based on the contention that such
are "inappropriate provisions." Even assuming, for the sake of argument, that a provision in
the appropriations act is "inappropriate" from the Presidential standpoint, it is still
a provision, not an item, in an appropriations act and, therefore, outside the veto power of
the Executive.
VITUG, J., concurring:
I concur on the points so well expounded by a most respected colleague, Mr. Justice Camilo
D. Quiason. I should like to highlight a bit, however, that part of the ponencia dealing on the
Countrywide Development Fund or, so commonly referred to as, the infamous "pork barrel".
I agree that it lies with Congress to determine in an appropriation act the activities and the
projects that are desirable and may thus be funded. Once, however, such identification and
the corresponding appropriation therefore is done, the legislative act is completed and it
ends there. Thereafter, the Executive is behooved, with exclusive responsibility and authority,
to see to it that the legislative will is properly carried out. I cannot subscribe to another theory
invoked by some quarters that, in so implementing the law, the Executive does so only by
way of delegation. Congress neither may delegate what it does not have nor may encroach
on the powers of a co-equal, independent and coordinate branch.
Within its own sphere, Congress acts as a body, not as the individuals that comprise it, in
any action or decision that can bind it, or be said to have been done by it, under its
constitutional authority. Even assuming that overseeing the laws it enacts continues to be a
legislative process, one that I find difficult to accept, it is Congress itself, not any of its
members, that must exercise that function.
I cannot debate the fact that the members of Congress, more than the President and his
colleagues, would have the best feel on the needs of their own respective constituents. I see
no legal obstacle, however, in their making, just like anyone else, the proper
recommendations to, albeit not necessarily conclusive on, the President for the purpose.
Neither would it be objectionable for Congress, by law, to appropriate funds for such specific
projects as it may be minded; to give that authority, however, to the individual members of
Congress in whatever guise, I am afraid, would be constitutionally impermissible.
PEOPLE V VERA
SUPREME COURT
Manila
EN BANC
G.R. No. L-45685
November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance of the
writ of certiorari and of prohibition to the Court of First Instance of Manila so that this court
may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649
entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more
particularly the application of the defendant Mariano Cu Unjieng therein for probation under
the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from
taking any further action or entertaining further the aforementioned application for probation,
to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in
accordance with the final judgment of conviction rendered by this court in said case (G. R.
No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein
Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of
First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O.
Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila,
who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid
criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of
Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation
intervening in the case as private prosecutor. After a protracted trial unparalleled in the
annals of Philippine jurisprudence both in the length of time spent by the court as well as in
the volume in the testimony and the bulk of the exhibits presented, the Court of First
Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two
months of prision correccional to eight years of prision mayor, to pay the costs and with
reservation of civil action to the offended party, the Hongkong and Shanghai Banking
Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an
indeterminate penalty of from five years and six months of prision correccional to seven
years, six months and twenty-seven days ofprision mayor, but affirmed the judgment in all
other respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive
motions for new trial which were denied on December 17, 1935, and final judgment was
accordingly entered on December 18, 1935. The defendant thereupon sought to have the
case elevated oncertiorari to the Supreme Court of the United States but the latter denied the
petition for certiorari in
November, 1936. This court, on
November 24, 1936,
denied the petition subsequently filed by the defendant for leave to file a second alternative
motion for reconsideration or new trial and thereafter remanded the case to the court of
origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein
respondent Mariano Cu Unjieng on
November 27, 1936, before the trial court, under
the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent
Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which
he was convicted, that he has no criminal record and that he would observe good conduct in
the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the
application for probation of the Insular Probation Office which recommended denial of the
same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch,
Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of
probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an
opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it
has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative
of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the
laws for the reason that its applicability is not uniform throughout the Islands and because
section 11 of the said Act endows the provincial boards with the power to make said law
effective or otherwise in their respective or otherwise in their respective provinces. The
private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on
the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power
to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal
concurred in the opposition of the private prosecution except with respect to the questions
raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a
finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su
inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por
duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but
denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la
historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al
peticionario acreedor de la misma, una parte de la opinion publica, atizada por los
recelos y las suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de una causa
criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a
la superficie conclusiones enteramente differentes, en menoscabo del interes publico
que demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to
the resolution denying probation and a notice of intention to file a motion for reconsideration.
An alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937.
This was supplemented by an additional motion for reconsideration submitted on July 14,
1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was
postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a
motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four)
attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature
appears in the aforesaid motion subsequently filed a petition for leave to withdraw his
appearance as amicus curiae on the ground that the motion for leave to intervene as amici
curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening
of July 30, 1937, and that he signed the same "without mature deliberation and purely as a
matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the
issuance of an order of execution of the judgment of this court in said case and forthwith to
commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to
intervene as amici curiaeaforementioned, asking that a date be set for a hearing of the same
and that, at all events, said motion should be denied with respect to certain attorneys signing
the same who were members of the legal staff of the several counsel for Mariano Cu
Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order
requiring all parties including the movants for intervention as amici curiae to appear before
the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila
moved for the hearing of his motion for execution of judgment in preference to the motion for
leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he
moved for the postponement of the hearing of both motions. The respondent judge
thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to
consider the motion for leave to intervene as amici curiae as in order. Evidence as to the
circumstances under which said motion for leave to intervene as amici curiae was signed
and submitted to court was to have been heard on August 19, 1937. But at this juncture,
herein petitioners came to this court on extraordinary legal process to put an end to what
they alleged was an interminable proceeding in the Court of First Instance of Manila which
fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him, exposing the courts to criticism and
ridicule because of the apparent inability of the judicial machinery to make effective a final
judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance
of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and
prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction
or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng
under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to
apply only to the provinces of the Philippines; it nowhere states that it is to be made
applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in
the absence of a special provision, the term "province" may be construed to include
the City of Manila for the purpose of giving effect to laws of general application, it is
also true that Act No. 4221 is not a law of general application because it is made to
apply only to those provinces in which the respective provincial boards shall have
provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an Insular
Probation Officer willing to act for the City of Manila, said Probation Officer provided
for in section 10 of Act No. 4221 being different and distinct from the Probation
Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application
for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without
jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and
by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of
June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to
the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation
on June 28, 1937, it became final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the
crime for which he was convicted by final judgment of this court, which finding is not only
presumptuous but without foundation in fact and in law, and is furthermore in contempt of
this court and a violation of the respondent's oath of office as ad interim judge of first
instance.
IV. Because the respondent judge has violated and continues to violate his duty, which
became imperative when he issued his order of June 28, 1937, denying the application for
probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the
ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and
Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine
Legislature providing for a system of probation for persons eighteen years of age or over
who are convicted of crime, is unconstitutional because it is violative of section 1, subsection
(1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws
because it confers upon the provincial board of its province the absolute discretion to make
said law operative or otherwise in their respective provinces, because it constitutes an
unlawful and improper delegation to the provincial boards of the several provinces of the
legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by
the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it
gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the
Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of
different provinces without uniformity. In another supplementary petition dated September
14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the
Philippine Islands, concurs for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6,
1937, further elaborated on the theory that probation is a form of reprieve and therefore Act.
No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons
and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he
contended that Act No. 4221 not only encroaches upon the pardoning power to the
executive, but also constitute an unwarranted delegation of legislative power and a denial of
the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by
the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine
Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation,
one sustaining the power of the state to impugn the validity of its own laws and the other
contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an unlawful delegation of legislative power and, further,
that the whole Act is void: that the Commonwealth is not estopped from questioning the
validity of its laws; that the private prosecution may intervene in probation proceedings and
may attack the probation law as unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the
petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.
(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court
of First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance
has assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive
the trial court of its jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory
for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion
the trial court was able to resolve in view of the restraining order improvidently and
erroneously issued by this court.
lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when he
presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the
writ ofcertiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter case taking the form of a motion
for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation will
be closed from the moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that
Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does
not constitute an undue delegation of legislative power, does not infringe the equal protection
clause of the Constitution, and does not encroach upon the pardoning power of the
Executive. In an additional memorandum filed on the same date, counsel for the
respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional
objections and contend, in addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of Act No. 4221; that both the City
Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the
validity of Act cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest
of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for
having been filed out of time but was admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of the points raised by the
respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case,
we noted that the court below, in passing upon the merits of the application of the
respondent Mariano Cu Unjieng and in denying said application assumed the task not only of
considering the merits of the application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation
implies guilt be final judgment. While a probation case may look into the circumstances
attending the commission of the offense, this does not authorize it to reverse the findings and
conclusive of this court, either directly or indirectly, especially wherefrom its own admission
reliance was merely had on the printed briefs, averments, and pleadings of the parties. As
already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated
in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of
overruling decisions of the Supreme Court, there would be no end to litigation, and judicial
chaos would result." A becoming modesty of inferior courts demands conscious realization of
the position that they occupy in the interrelation and operation of the intergrated judicial
system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and
the respondents, this court prefers to cut the Gordian knot and take up at once the two
fundamental questions presented, namely, (1) whether or not the constitutionality of Act No.
4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or
not said Act is constitutional. Considerations of these issues will involve a discussion of
certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not
be determined by the courts unless that question is properly raised and presented
inappropriate cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915],
30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly
where the remedies in the ordinary course of law even if available, are not plain, speedy and
adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the
question of the constitutionality of a statute may be raised by the petitioner
in mandamusproceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the
Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the
legislature unconstitutional in an action of quo warranto brought in the name of the
Government of the Philippines. It has also been held that the constitutionality of a statute
may be questioned inhabeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas
Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application
for injunction to restrain action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where
the determination of the constitutional question is necessary to a decision of the case. (12 C.
J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial
District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R.
A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by
this court twelve years ago was, like the present one, an original action for certiorari and
prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese
Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was
not met squarely by the respondent in a demurrer. A point was raised "relating to the
propriety of the constitutional question being decided in original proceedings in prohibition."
This court decided to take up the constitutional question and, with two justices dissenting,
held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the
Supreme Court of the United States which reversed the judgment of this court and held that
the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction,
however, the Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine
supreme court is granted concurrent jurisdiction in prohibition with courts of first
instance over inferior tribunals or persons, and original jurisdiction over courts of first
instance, when such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the validity of the
criminal statute must usually be raised by a defendant in the trial court and be carried
regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a multiplicity of
actions, the Supreme Court exercised its discretion to bring the issue to the act's
validity promptly before it and decide in the interest of the orderly administration of
justice. The court relied by analogy upon the cases of Ex parteYoung (209 U. S.,
123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca.,
764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup.
Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed.,
755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although
objection to the jurisdiction was raise by demurrer to the petition, this is now
disclaimed on behalf of the respondents, and both parties ask a decision on the
merits. In view of the broad powers in prohibition granted to that court under the
Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the
merit of prohibition will not lie whether the inferior court has jurisdiction independent of the
statute the constitutionality of which is questioned, because in such cases the interior court
having jurisdiction may itself determine the constitutionality of the statute, and its decision
may be subject to review, and consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of prohibition. But where the inferior
court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex
parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish
[1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am.
Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from
Act No. 4221 which prescribes in detailed manner the procedure for granting probation to
accused persons after their conviction has become final and before they have served their
sentence. It is true that at common law the authority of the courts to suspend temporarily the
execution of the sentence is recognized and, according to a number of state courts, including
those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156
Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y.,
288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72;
Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that
under the common law the power of the court was limited to temporary suspension, and
brushed aside the contention as to inherent judicial power saying, through Chief Justice
White:
Indisputably under our constitutional system the right to try offenses against the
criminal laws and upon conviction to impose the punishment provided by law is
judicial, and it is equally to be conceded that, in exerting the powers vested in them
on such subject, courts inherently possess ample right to exercise reasonable, that
is, judicial, discretion to enable them to wisely exert their authority. But these
concessions afford no ground for the contention as to power here made, since it
must rest upon the proposition that the power to enforce begets inherently a
discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when
it is observed that indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in advance to bring within
judicial discretion, for the purpose of executing the statute, elements of consideration
which would be otherwise beyond the scope of judicial authority, and that the right to
relieve from the punishment, fixed by law and ascertained according to the methods
by it provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs.
Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached
the conclusion that the power to suspend the execution of sentences pronounced in criminal
cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of
statutory authority, it does not lie within the power of the courts to grant such suspensions."
(at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a
Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its
jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application
for prohibition where the question has not been properly brought to the attention of the court
by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly
vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that
the constitutional issue has been squarely presented not only before this court by the
petitioners but also before the trial court by the private prosecution. The respondent, Hon.
Jose O Vera, however, acting as judge of the court below, declined to pass upon the
question on the ground that the private prosecutor, not being a party whose rights are
affected by the statute, may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue
vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute
by one who has no interest in defeating it because his rights are not affected by its operation.
The respondent judge further stated that it may not motu proprio take up the constitutional
question and, agreeing with Cooley that "the power to declare a legislative enactment void is
one which the judge, conscious of the fallibility of the human judgment, will shrink from
exercising in any case where he can conscientiously and with due regard to duty and official
oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded
on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits
that the constitutional question was raised before it, it refused to consider the question solely
because it was not raised by a proper party. Respondents herein reiterates this view. The
argument is advanced that the private prosecution has no personality to appear in the
hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No.
42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was
not properly raised in the lower court. Although, as a general rule, only those who are parties
to a suit may question the constitutionality of a statute involved in a judicial decision, it has
been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by
persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even
if we were to concede that the issue was not properly raised in the court below by the proper
party, it does not follow that the issue may not be here raised in an original action
of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality
must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it
may not be raised at the trial, and if not raised in the trial court, it will not considered on
appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in
the exercise of sounds discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.)
Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of
a court to pass on the constitutional question, though raised for the first time on appeal, if it
appears that a determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St.
Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves
the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional question raised for the first time before
this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai
Banking Corporation, represented by the private prosecution, is not the proper party to raise
the constitutional question here a point we do not now have to decide we are of the
opinion that the People of the Philippines, represented by the Solicitor-General and the
Fiscal of the City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustained,
direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really
violates the constitution, the People of the Philippines, in whose name the present action is
brought, has a substantial interest in having it set aside. Of grater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that
the state can challenge the validity of its own laws. In Government of the Philippine Islands
vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the Philippines. In
Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the
State of Michigan, through its Attorney General, instituted quo warranto proceedings to test
the right of the respondents to renew a mining corporation, alleging that the statute under
which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was though, as a general rule, only those who are parties to a
suit may question the constitutionality of a statute involved in a judicial decision, it has been
held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the attention of the court by
persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if
we were to concede that the issue was not properly raised in the court below by the proper
party, it does not follow that the issue may not be here raised in an original action of certiorari
and prohibition. It is true that, as a general rule, the question of constitutionality must be
raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not
be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12
C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of
sound discretion, may determine the time when a question affecting the constitutionality of a
statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may
be raised for the first time at any state of the proceedings, either in the trial court or on
appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to
pass on the constitutional question, though raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis,
Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co.
[1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will
be considered by an appellate court at any time, where it involves the jurisdiction of the court
below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to
consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs.
Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we are of the opinion that the
People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the
People of the Philippines, in whose name the present action is brought, has a substantial
interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge
the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50
Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S.,
189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an
action instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan,
through its Attorney General, instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the obligation of
contracts. The capacity of the chief law officer of the state to question the constitutionality of
the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity
of a law enacted by their representatives; that to an accusation by the people of
Michigan of usurpation their government, a statute enacted by the people of
Michigan is an adequate answer. The last proposition is true, but, if the statute relied
on in justification is unconstitutional, it is statute only in form, and lacks the force of
law, and is of no more saving effect to justify action under it than if it had never been
enacted. The constitution is the supreme law, and to its behests the courts, the
legislature, and the people must bow . . . The legislature and the respondents are not
the only parties in interest upon such constitutional questions. As was remarked by
Mr. Justice Story, in speaking of an acquiescence by a party affected by an
unconstitutional act of the legislature: "The people have a deep and vested interest in
maintaining all the constitutional limitations upon the exercise of legislative powers."
(Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus)
was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the
state. In disposing of the question whether or not the state may bring the action, the
Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring this action. The
state is always interested where the integrity of its Constitution or statutes is
involved.
"It has an interest in seeing that the will of the Legislature is not
disregarded, and need not, as an individual plaintiff must, show
grounds of fearing more specific injury. (State vs. Kansas City 60
Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its AttorneyGeneral, or county attorney, may exercise his bet judgment as to what sort of action
he will bring to have the matter determined, either by quo warranto to challenge its
validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by
mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108
Pac., 846), or by injunction to restrain proceedings under its questionable provisions
(State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co.
[1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley
[1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286;
First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State
{1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10,
11). In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged
with the duty of enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three decisions are cited, viz.: State ex
rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222);
State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann.,
156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann.,
1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney
to plead that a statute is unconstitutional if he finds if in conflict with one which it is
his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling
was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a
person with a violation of the statute. In other words, a judge should not judicially
declare a statute unconstitutional until the question of constitutionality is tendered for
decision, and unless it must be decided in order to determine the right of a party
litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely
that an officer on whom a statute imposes the duty of enforcing its provisions cannot
avoid the duty upon the ground that he considers the statute unconstitutional, and
hence in enforcing the statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely
that executive officers, e.g., the state auditor and state treasurer, should not decline
to perform ministerial duties imposed upon them by a statute, on the ground that they
believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above
all, to support the Constitution of the state. If, in the performance of his duty he finds
two statutes in conflict with each other, or one which repeals another, and if, in his
judgment, one of the two statutes is unconstitutional, it is his duty to enforce the
other; and, in order to do so, he is compelled to submit to the court, by way of a plea,
that one of the statutes is unconstitutional. If it were not so, the power of the
Legislature would be free from constitutional limitations in the enactment of criminal
laws.
The respondents do not seem to doubt seriously the correctness of the general proposition
that the state may impugn the validity of its laws. They have not cited any authority running
clearly in the opposite direction. In fact, they appear to have proceeded on the assumption
that the rule as stated is sound but that it has no application in the present case, nor may it
be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners
herein, the principal reasons being that the validity before this court, that the City Fiscal is
estopped from attacking the validity of the Act and, not authorized challenge the validity of
the Act in its application outside said city. (Additional memorandum of respondents, October
23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that
time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary,
has been impliedly regarded by him as constitutional, is no reason for considering the
People of the Philippines estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for determination,
and the fact that the question has not been raised before is not a valid reason for refusing to
allow it to be raised later. The fiscal and all others are justified in relying upon the statute and
treating it as valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is
necessary to the resolution of the instant case. For, ". . . while the court will meet the
question with firmness, where its decision is indispensable, it is the part of wisdom, and just
respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be
decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447.
Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination
of a constitutional question is necessary whenever it is essential to the decision of the case
(12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N.
Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S.,
272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.],
458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where
the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p.
782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs.
Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that
the Probation Act is a new addition to our statute books and its validity has never before
been passed upon by the courts; that may persons accused and convicted of crime in the
City of Manila have applied for probation; that some of them are already on probation; that
more people will likely take advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of about four years since his
first conviction. All wait the decision of this court on the constitutional question. Considering,
therefore, the importance which the instant case has assumed and to prevent multiplicity of
suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be
now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70
Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101
N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W.,
209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.)
In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said:
"Inasmuch as the property and personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet
interpreted by the courts, in the interest of the public welfare and for the advancement of
public policy, we have determined to overrule the defense of want of jurisdiction in order that
we may decide the main issue. We have here an extraordinary situation which calls for a
relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court
of the United States. A more binding authority in support of the view we have taken can not
be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has
been properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1,
and section 10, of Article VIII of the Constitution, may declare an act of the national
legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn
duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the
supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial
duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of
the legislature approved by the executive, is presumed to be within constitutional limitations.
The responsibility of upholding the Constitution rests not on the courts alone but on the
legislature as well. "The question of the validity of every statute is first determined by the
legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case
vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.)
And a statute finally comes before the courts sustained by the sanction of the executive. The
members of the Legislature and the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been true to this oath and that in
enacting and sanctioning a particular law they did not intend to violate the Constitution. The
courts cannot but cautiously exercise its power to overturn the solemn declarations of two of
the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as
expressed through an elective Legislature and an elective Chief Executive. It follows,
therefore, that the courts will not set aside a law as violative of the Constitution except in a
clear case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called
attention to the fact that the President of the Philippines had already expressed his opinion
against the constitutionality of the Probation Act, adverting that as to the Executive the
resolution of this question was a foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court. We take notice of the fact that the
President in his message dated September 1, 1937, recommended to the National Assembly
the immediate repeal of the Probation Act (No. 4221); that this message resulted in the
approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to
certain conditions therein mentioned; but that said bill was vetoed by the President on
September 13, 1937, much against his wish, "to have stricken out from the statute books of
the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to
observe in this connection that, in vetoing the bill referred to, the President exercised his
constitutional prerogative. He may express the reasons which he may deem proper for
taking such a step, but his reasons are not binding upon us in the determination of actual
controversies submitted for our determination. Whether or not the Executive should express
or in any manner insinuate his opinion on a matter encompassed within his broad
constitutional power of veto but which happens to be at the same time pending determination
in this court is a question of propriety for him exclusively to decide or determine. Whatever
opinion is expressed by him under these circumstances, however, cannot sway our judgment
on way or another and prevent us from taking what in our opinion is the proper course of
action to take in a given case. It if is ever necessary for us to make any vehement affirmance
during this formative period of our political history, it is that we are independent of the
Executive no less than of the Legislative department of our government independent in
the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as
we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said
Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue
delegation of legislative power and (3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones
Law, in force at the time of the approval of Act No. 4221, otherwise known as the Probation
Act, vests in the Governor-General of the Philippines "the exclusive power to grant pardons
and reprieves and remit fines and forfeitures". This power is now vested in the President of
the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the
Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has
been omitted from the Constitution. Under the Jones Law, as at common law, pardon could
be granted any time after the commission of the offense, either before or after conviction
(Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The
Governor-General of the Philippines was thus empowered, like the President of the United
States, to pardon a person before the facts of the case were fully brought to light. The
framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So,
too, under the new Constitution, the pardoning power does not extend to "cases of
impeachment". This is also the rule generally followed in the United States (Vide Constitution
of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon
can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it is not understood that the king's
royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15
Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs.
Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious.
In England, Judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the Government"
(Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached
by law to the offense committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed, together with removal
from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also
makes specific mention of "commutation" and of the power of the executive to impose, in the
pardons he may grant, such conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the Constitution but only with the
concurrence of the National Assembly. We need not dwell at length on the significance of
these fundamental changes. It is sufficient for our purposes to state that the pardoning power
has remained essentially the same. The question is: Has the pardoning power of the Chief
Executive under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief
Executive. The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor
fettered by any legislative restrictions, nor can like power be given by the legislature to any
other officer or authority. The coordinate departments of government have nothing to do with
the pardoning power, since no person properly belonging to one of the departments can
exercise any powers appertaining to either of the others except in cases expressly provided
for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power
is conferred on the executive without express or implied limitations, the grant is exclusive,
and the legislature can neither exercise such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases
cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that
reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the
United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex
parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the
authorities, expressed the opinion of the court that under the common law the power of the
court was limited to temporary suspension and that the right to suspend sentenced
absolutely and permanently was vested in the executive branch of the government and not in
the judiciary. But, the right of Congress to establish probation by statute was conceded. Said
the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the
causing of the imposition of penalties as fixed to be subject, by probation legislation or such
other means as the legislative mind may devise, to such judicial discretion as may be
adequate to enable courts to meet by the exercise of an enlarged but wise discretion the
infinite variations which may be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to agitate for the enactment by Congress of a
federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L.
159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries
and expenses of a certain number of probation officers chosen by civil service. (Johnson,
Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309),
the Supreme Court of the United States, through Chief Justice Taft, held that when a person
sentenced to imprisonment by a district court has begun to serve his sentence, that court
has no power under the Probation Act of March 4, 1925 to grant him probation even though
the term at which sentence was imposed had not yet expired. In this case of Murray, the
constitutionality of the probation Act was not considered but was assumed. The court traced
the history of the Act and quoted from the report of the Committee on the Judiciary of the
United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the
following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts
exercised a form of probation either, by suspending sentence or by placing the
defendants under state probation officers or volunteers. In this case, however (Ex
parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct.
Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district
courts to suspend sentenced. In the same opinion the court pointed out the necessity
for action by Congress if the courts were to exercise probation powers in the future . .
.
Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and
passed the House. In 1920, the judiciary Committee again favorably reported a
probation bill to the House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with
reference to its treatment of those convicted of violations of its criminal laws in
harmony with that of the states of the Union. At the present time every state has a
probation law, and in all but twelve states the law applies both to adult and juvenile
offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal
courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit
said:
Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit
(7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held
in no manner to encroach upon the pardoning power of the President. This case will
be found to contain an able and comprehensive review of the law applicable here. It
arose under the act we have to consider, and to it and the authorities cited therein
special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a
decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F.
[2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws,
that a federal probation law as actually enacted in 1925, and that the constitutionality of the
Act has been assumed by the Supreme Court of the United States in 1928 and consistently
sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United States,
may legally enact a probation law under its broad power to fix the punishment of any and all
penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915],
20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the
province of the Legislature to denominate and define all classes of crime, and to prescribe
for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C.,
466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The
legislative power to set punishment for crime is very broad, and in the exercise of this power
the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the
sentence to be imposed, as to the beginning and end of the punishment and whether it
should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S.
C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in
the courts particularly the trial courts large discretion in imposing the penalties which
the law prescribes in particular cases. It is believed that justice can best be served by vesting
this power in the courts, they being in a position to best determine the penalties which an
individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed
to refrain from imposing a sentence merely because, taking into consideration the degree of
malice and the injury caused by the offense, the penalty provided by law is clearly excessive,
the courts being allowed in such case to submit to the Chief Executive, through the
Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal
Code), in cases where both mitigating and aggravating circumstances are attendant in the
commission of a crime and the law provides for a penalty composed of two indivisible
penalties, the courts may allow such circumstances to offset one another in consideration of
their number and importance, and to apply the penalty according to the result of such
compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921],
41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law
contains three periods, the extent of the evil produced by the crime. In the imposition of
fines, the courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more particularly the
wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the
same Code provides that "a discretionary penalty shall be imposed" upon a person under
fifteen but over nine years of age, who has not acted without discernment, but always lower
by two degrees at least than that prescribed by law for the crime which he has committed.
Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the
crime committed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period
which may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social danger and the degree of
criminality shown by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is
deducted form the entire term of imprisonment, except in certain cases expressly mentioned
(art. 29); the death penalty is not imposed when the guilty person is more than seventy years
of age, or where upon appeal or revision of the case by the Supreme Court, all the members
thereof are not unanimous in their voting as to the propriety of the imposition of the death
penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by
Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the
three years next following the date of the sentence or while she is pregnant, or upon any
person over seventy years of age (art. 83); and when a convict shall become insane or an
imbecile after final sentence has been pronounced, or while he is serving his sentenced, the
execution of said sentence shall be suspended with regard to the personal penalty during the
period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the
penal laws is more clearly demonstrated in various other enactments, including the probation
Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and
granting the courts large discretion in imposing the penalties of the law. Section 1 of the law
as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by
the Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code, and to
a minimum which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same." Certain classes of convicts are, by section 2 of the law,
excluded from the operation thereof. The Legislature has also enacted the Juvenile
Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section
7 of the original Act and section 1 of the amendatory Act have become article 80 of the
Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently
reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again
manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect,
the modification in particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment in the discretion of the trial court, after due
hearing and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality decreed that
in certain cases no punishment at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. It this be so, then, it cannot be said that the
Probation Act comes in conflict with the power of the Chief Executive to grant pardons and
reprieves, because, to use the language of the Supreme Court of New Mexico, "the element
of punishment or the penalty for the commission of a wrong, while to be declared by the
courts as a judicial function under and within the limits of law as announced by legislative
acts, concerns solely the procedure and conduct of criminal causes, with which the executive
can have nothing to do." (Ex parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327;
133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against
the contention that it attempted to delegate to the courts the pardoning power lodged by the
constitution in the governor alone is vested with the power to pardon after final sentence has
been imposed by the courts, the power of the courts to imposed any penalty which may be
from time to time prescribed by law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it
unlawful for the legislature to vest in the courts the power to suspend the operation of a
sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power
of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62
N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150;
182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19
L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill,
287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex.
Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev.,
361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep.,
175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839;
People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72
S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer
vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14])
[2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re
Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530;
265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171;
Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162
Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs.
State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101
Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs.
Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont.,
541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.],
848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne
[1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A.
1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp.,
406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N.
D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep.,
275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910],
87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States
[1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep.,
618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King
vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex.
Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W.
[2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802;
109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel.
Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect
to follow this long catena of authorities holding that the courts may be legally authorized by
the legislature to suspend sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26
A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which
provided for the suspension of the execution of a sentence until otherwise ordered by the
court, and required that the convicted person be placed under the charge of a parole or
peace officer during the term of such suspension, on such terms as the court may determine,
was held constitutional and as not giving the court a power in violation of the constitutional
provision vesting the pardoning power in the chief executive of the state. (Vide,
also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually district
and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court
of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim.
Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons,
as understood when the constitution was adopted, are totally distinct and different in
their nature. The former was always a part of the judicial power; the latter was always
a part of the executive power. The suspension of the sentence simply postpones the
judgment of the court temporarily or indefinitely, but the conviction and liability
following it, and the civil disabilities, remain and become operative when judgment is
rendered. A pardon reaches both the punishment prescribed for the offense and the
guilt of the offender. It releases the punishment, and blots out of existence the guilt,
so that in the eye of the law, the offender is as innocent as if he had never committed
the offense. It removes the penalties and disabilities, and restores him to all his civil
rights. It makes him, as it were, a new man, and gives him a new credit and capacity.
(Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S.,
13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these
instruments upon the executive with full knowledge of the law upon the subject, and
the words of the constitution were used to express the authority formerly exercised
by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U.
S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not
comprehend any part of the judicial functions to suspend sentence, and it was never
intended that the authority to grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its own judgments, that
criminal courts has so long maintained. The two powers, so distinct and different in
their nature and character, were still left separate and distinct, the one to be
exercised by the executive, and the other by the judicial department. We therefore
conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to
suspend sentence in certain cases after conviction, a power inherent in such
courts at common law, which was understood when the constitution was adopted to
be an ordinary judicial function, and which, ever since its adoption, has been
exercised of legislative power under the constitution. It does not encroach, in any just
sense, upon the powers of the executive, as they have been understood and
practiced from the earliest times. (Quoted with approval in Directors of Prisons vs.
Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp.
294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally
and completely exonerated. He is not exempt from the entire punishment which the law
inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact
that he is placed on probation. Section 4 of the Act provides that the probation may be
definitely terminated and the probationer finally discharged from supervision only after the
period of probation shall have been terminated and the probation officer shall have submitted
a report, and the court shall have found that the probationer has complied with the conditions
of probation. The probationer, then, during the period of probation, remains in legal custody
subject to the control of the probation officer and of the court; and, he may be rearrested
upon the non-fulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6,
Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may
be far from it. It is really a new mode of punishment, to be applied by the judge in a
proper case, in substitution of the imprisonment and find prescribed by the criminal
laws. For this reason its application is as purely a judicial act as any other sentence
carrying out the law deemed applicable to the offense. The executive act of pardon,
on the contrary, is against the criminal law, which binds and directs the judges, or
rather is outside of and above it. There is thus no conflict with the pardoning power,
and no possible unconstitutionality of the Probation Act for this cause. (Archer vs.
Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W.,
162), is relied upon most strongly by the petitioners as authority in support of their contention
that the power to grant pardons and reprieves, having been vested exclusively upon the
Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts
by means of probation law authorizing the indefinite judicial suspension of sentence. We
have examined that case and found that although the Court of Criminal Appeals of Texas
held that the probation statute of the state in terms conferred on the district courts the power
to grant pardons to persons convicted of crime, it also distinguished between suspensions
sentence on the one hand, and reprieve and commutation of sentence on the other. Said the
court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the
Governor to grant reprieves is settled by the decisions of the various courts; it being
held that the distinction between a "reprieve" and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a day certain, whereas a
suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp.
6115, 6116. This law cannot be hold in conflict with the power confiding in the
Governor to grant commutations of punishment, for a commutations is not but to
change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the
Supreme Court of Montana had under consideration the validity of the adult probation law of
the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The
court held the law valid as not impinging upon the pardoning power of the executive. In a
unanimous decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood
meaning at the time our Constitution was adopted, and no one of them was intended
to comprehend the suspension of the execution of the judgment as that phrase is
employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from
the power intrusted with the execution of the laws which exempts the individual on
whom it is bestowed from the punishment the law inflicts for a crime he has
committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission
of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense
(Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am.
Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of
a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12
Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or
"respite" is the withholding of the sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr.
R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our
section 12078 has been determined; but the same objections have been urged
against parole statutes which vest the power to parole in persons other than those to
whom the power of pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to Woods vs.
State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose.
(See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the
Executive. The pardoning power, in respect to those serving their probationary sentences,
remains as full and complete as if the Probation Law had never been enacted. The President
may yet pardon the probationer and thus place it beyond the power of the court to order his
rearrest and imprisonment. (Riggs vs. United States [1926],

14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the
executive and is not for that reason void, does section 11 thereof constitute, as contended,
an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among three
coordinate and substantially independent organs: the legislative, the executive and the
judicial. Each of these departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral Legislature by
the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI,
sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly
may not escape its duties and responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is unconstitutional and void, on the principle
that potestas delegata non delegare potest. This principle is said to have originated with the
glossators, was introduced into English law through a misreading of Bracton, there
developed as a principle of agency, was established by Lord Coke in the English public law
in decisions forbidding the delegation of judicial power, and found its way into America as an
enlightened principle of free government. It has since become an accepted corollary of the
principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic
statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have."
(Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the
following oft-quoted language: "One of the settled maxims in constitutional law is, that the
power conferred upon the legislature to make laws cannot be delegated by that department
to any other body or authority. Where the sovereign power of the state has located the
authority, there it must remain; and by the constitutional agency alone the laws must be
made until the Constitution itself is charged. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities
by choosing other agencies upon which the power shall be devolved, nor can it substitute the
judgment, wisdom, and patriotism of any other body for those to which alone the people
have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court
posits the doctrine "on the ethical principle that such a delegated power constitutes not only
a right but a duty to be performed by the delegate by the instrumentality of his own judgment
acting immediately upon the matter of legislation and not through the intervening mind of
another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits
the central legislative body to delegate legislative powers to local authorities. (Rubi vs.
Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102;
Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256;
State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of
government, that local affairs shall be managed by local authorities, and general affairs by
the central authorities; and hence while the rule is also fundamental that the power to make
laws cannot be delegated, the creation of the municipalities exercising local self government
has never been held to trench upon that rule. Such legislation is not regarded as a transfer of
general legislative power, but rather as the grant of the authority to prescribed local
regulations, according to immemorial practice, subject of course to the interposition of the
superior in cases of necessity." (Stoutenburgh vs. Hennick,supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies in the
territories of the United States as it may select. A territory stands in the same relation to
Congress as a municipality or city to the state government. (United States vs. Heinszen
[1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs.
United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas.,
697.) Courts have also sustained the delegation of legislative power to the people at large.
Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p.
164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C,
616). However, the question of whether or not a state has ceased to be republican in form
because of its adoption of the initiative and referendum has been held not to be a judicial but
a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law.
ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the more
conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass.,
586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379;
1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.)
Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14,
paragraph 2, of article VI of the Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to such limitations and restrictions as
it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage
and wharfage dues." And section 16 of the same article of the Constitution provides that "In
times of war or other national emergency, the National Assembly may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribed, to
promulgate rules and regulations to carry out a declared national policy." It is beyond the
scope of this decision to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to exercise the powers thereby
vested in him. Upon the other hand, whatever doubt may have existed has been removed by
the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards
have provided for the salary of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer shall be appointed by the
Secretary of Justice and shall be subject to the direction of the Probation Office.
(Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is
usual to inquire whether the statute was complete in all its terms and provisions when it left
the hands of the legislature so that nothing was left to the judgment of any other appointee or
delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922],
43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void
in so far as it undertook to authorize the Governor-General, in his discretion, to issue a
proclamation fixing the price of rice and to make the sale of it in violation of the proclamation
a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility
Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule
that to a certain extent matters of detail may be left to be filled in by rules and regulations to
be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp.

177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative
bodies endowed with power to determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature in this respect. The rules
governing delegation of legislative power to administrative and executive officers are
applicable or are at least indicative of the rule which should be here adopted. An examination
of a variety of cases on delegation of power to administrative bodies will show that the ratio
decidendi is at variance but, it can be broadly asserted that the rationale revolves around the
presence or absence of a standard or rule of action or the sufficiency thereof in the
statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that
the standard is sufficient; in others that is insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay
down any rule or definite standard by which the administrative officer or board may be
guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United
States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947;
People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500
and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar,
what rules are to guide the provincial boards in the exercise of their discretionary power to
determine whether or not the Probation Act shall apply in their respective provinces? What
standards are fixed by the Act? We do not find any and none has been pointed to us by the
respondents. The probation Act does not, by the force of any of its provisions, fix and impose
upon the provincial boards any standard or guide in the exercise of their discretionary power.
What is granted, if we may use the language of Justice Cardozo in the recent case of
Schecter, supra, is a "roving commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own
authority extend the benefits of the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine. In other words, the provincial
boards of the various provinces are to determine for themselves, whether the Probation Law
shall apply to their provinces or not at all. The applicability and application of the Probation
Act are entirely placed in the hands of the provincial boards. If the provincial board does not
wish to have the Act applied in its province, all that it has to do is to decline to appropriate
the needed amount for the salary of a probation officer. The plain language of the Act is not
susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative
power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be, and conferring an authority
or discretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court in Municipality of
Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of
Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of
these cases, this court sustained the validity of the law conferring upon the GovernorGeneral authority to adjust provincial and municipal boundaries. In the second case, this
court held it lawful for the legislature to direct non-Christian inhabitants to take up their
habitation on unoccupied lands to be selected by the provincial governor and approved by
the provincial board. In the third case, it was held proper for the legislature to vest in the
Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country
make this advisable or if deceased among foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple
transference of details of execution or the promulgation by executive or administrative
officials of rules and regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327;
U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394;
Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218;
Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it
leaves the hands of the legislature. It is true that laws may be made effective on certain
contingencies, as by proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed.,
Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme
Court of the United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92
Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which
may be delegated. There is nothing essentially legislative in ascertaining the existence of
facts or conditions as the basis of the taking into effect of a law. That is a mental process
common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In
re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs.
Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the
rule prohibiting delegation of legislative authority on account of the complexity arising from
social and economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931,
Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July,
1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution
of the United States in the following language speaking of declaration of legislative power
to administrative agencies: "The principle which permits the legislature to provide that the
administrative agent may determine when the circumstances are such as require the
application of a law is defended upon the ground that at the time this authority is granted, the
rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the
administrative official is not the legislative determination of what public policy demands, but
simply the ascertainment of what the facts of the case require to be done according to the
terms of the law by which he is governed." (Willoughby on the Constitution of the United
States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3
Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a
declaration of legislative will must, of course, come from Congress, but the ascertainment of
the contingency upon which the Act shall take effect may be left to such agencies as it may
designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr
[1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to
some other person or body the power to determine when the specified contingencies has
arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition
Act contingent upon specified facts or conditions to be ascertained by the provincial board. It
leaves, as we have already said, the entire operation or non-operation of the law upon the
provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A
provincial board need not investigate conditions or find any fact, or await the happening of
any specified contingency. It is bound by no rule, limited by no principle of expendiency
announced by the legislature. It may take into consideration certain facts or conditions; and,
again, it may not. It may have any purpose or no purpose at all. It need not give any reason
whatsoever for refusing or failing to appropriate any funds for the salary of a probation
officer. This is a matter which rest entirely at its pleasure. The fact that at some future time
we cannot say when the provincial boards may appropriate funds for the salaries of
probation officers and thus put the law into operation in the various provinces will not save
the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the
will of the provincial boards and not upon the happening of a certain specified contingency,
or upon the ascertainment of certain facts or conditions by a person or body other than
legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending
the operation of the Probation Law in their respective provinces. In some jurisdiction,
constitutions provided that laws may be suspended only by the legislature or by its authority.
Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending
laws in this state shall be exercised except by the legislature"; and section 26, article I of the
Constitution of Indiana provides "That the operation of the laws shall never be suspended,
except by authority of the General Assembly." Yet, even provisions of this sort do not confer
absolute power of suspension upon the legislature. While it may be undoubted that the
legislature may suspend a law, or the execution or operation of a law, a law may not be
suspended as to certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for particular
localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:
By the twentieth article of the declaration of rights in the constitution of this
commonwealth, it is declared that the power of suspending the laws, or the execution
of the laws, ought never to be exercised but by the legislature, or by authority derived
from it, to be exercised in such particular cases only as the legislature shall expressly
provide for. Many of the articles in that declaration of rights were adopted from the
Magna Charta of England, and from the bill of rights passed in the reign of William
and Mary. The bill of rights contains an enumeration of the oppressive acts of James
II, tending to subvert and extirpate the protestant religion, and the laws and liberties
of the kingdom; and the first of them is the assuming and exercising a power of
dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained
in the statute is, that the exercise of such power, by legal authority without consent of
parliament, is illegal. In the tenth section of the same statute it is further declared and
enacted, that "No dispensation by non obstante of or to any statute, or part thereof,
should be allowed; but the same should be held void and of no effect, except a
dispensation be allowed of in such statute." There is an implied reservation of
authority in the parliament to exercise the power here mentioned; because,
according to the theory of the English Constitution, "that absolute despotic power,
which must in all governments reside somewhere," is intrusted to the parliament: 1
Bl. Com., 160.
The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only
exercise what is delegated to them according to the constitution. It is obvious that the
exercise of the power in question would be equally oppressive to the subject, and
subversive of his right to protection, "according to standing laws," whether exercised
by one man or by a number of men. It cannot be supposed that the people when
adopting this general principle from the English bill of rights and inserting it in our
constitution, intended to bestow by implication on the general court one of the most
odious and oppressive prerogatives of the ancient kings of England. It is manifestly
contrary to the first principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances; or that ant one should be
subject to losses, damages, suits, or actions from which all others under like
circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog
liable to the owner of domestic animals wounded by it for the damages without proving a
knowledge of it vicious disposition. By a provision of the act, power was given to the board of
supervisors to determine whether or not during the current year their county should be
governed by the provisions of the act of which that section constituted a part. It was held that
the legislature could not confer that power. The court observed that it could no more confer
such a power than to authorize the board of supervisors of a county to abolish in such county
the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs.
Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same
reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general
statute formulating a road system contained a provision that "if the county court of any
county should be of opinion that the provisions of the act should not be enforced, they might,
in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such
order; and thereupon order the roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is left to the county court to say which act
shall be enforce in their county. The act does not submit the question to the county court as
an original question, to be decided by that tribunal, whether the act shall commence its
operation within the county; but it became by its own terms a law in every county not
excepted by name in the act. It did not, then, require the county court to do any act in order
to give it effect. But being the law in the county, and having by its provisions superseded and
abrogated the inconsistent provisions of previous laws, the county court is . . . empowered,
to suspend this act and revive the repealed provisions of the former act. When the question
is before the county court for that tribunal to determine which law shall be in force, it is urge
before us that the power then to be exercised by the court is strictly legislative power, which
under our constitution, cannot be delegated to that tribunal or to any other body of men in the
state. In the present case, the question is not presented in the abstract; for the county court
of Saline county, after the act had been for several months in force in that county, did by
order suspend its operation; and during that suspension the offense was committed which is
the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32
S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to
other localities and, while recognizing the force of the principle hereinabove expressed,
courts in may jurisdiction have sustained the constitutionality of the submission of option
laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of
subjects purely local in character which should receive different treatment in different
localities placed under different circumstances. "They relate to subjects which, like the
retailing of intoxicating drinks, or the running at large of cattle in the highways, may be
differently regarded in different localities, and they are sustained on what seems to us the
impregnable ground, that the subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley
on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local
self-government and the propriety of leaving matters of purely local concern in the hands of
local authorities or for the people of small communities to pass upon, we believe that in
matters of general of general legislation like that which treats of criminals in general, and as
regards the general subject of probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly
state that the provincial boards may suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the authority to appropriate or not the
necessary funds for the salaries of probation officers, they thereby are given absolute
discretion to determine whether or not the law should take effect or operate in their
respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in
abeyance until the provincial boards should decide otherwise by appropriating the necessary
funds. The validity of a law is not tested by what has been done but by what may be done
under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259;
12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution
thereof. "Without this power, legislation would become oppressive and yet imbecile." (People
vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the
inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these representatives are
no further restrained under our system than by the express language of the instrument
imposing the restraint, or by particular provisions which by clear intendment, have that effect.
(Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran
[1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant
and a limitation of power and one of these time-honored limitations is that, subject to certain
exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation
of legislative authority to the provincial boards and is, for this reason, unconstitutional and
void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights
which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1
subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision
thereof, and on many constitutional power, like the police power, taxation and eminent
domain. The equal protection of laws, sententiously observes the Supreme Court of the
United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118
U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S.,
510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial
of the equal protection of the laws in a question not always easily determined. No rule that
will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U.
S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against
some and favoring others in prohibited. But classification on a reasonable basis, and nor
made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56
Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)
The classification, however, to be reasonable must be based on substantial distinctions
which make real differences; it must be germane to the purposes of the law; it must not be
limited to existing conditions only, and must apply equally to each member of the class.
(Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R.
A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural
Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337;
Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37
Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30
Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U.
S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the
unwarranted delegation of legislative power, although perhaps this is not necessarily the
result in every case. Adopting the example given by one of the counsel for the petitioners in
the course of his oral argument, one province may appropriate the necessary fund to defray
the salary of a probation officer, while another province may refuse or fail to do so. In such a
case, the Probation Act would be in operation in the former province but not in the latter. This
means that a person otherwise coming within the purview of the law would be liable to enjoy
the benefits of probation in one province while another person similarly situated in another
province would be denied those same benefits. This is obnoxious discrimination.
Contrariwise, it is also possible for all the provincial boards to appropriate the necessary
funds for the salaries of the probation officers in their respective provinces, in which case no
inequality would result for the obvious reason that probation would be in operation in each
and every province by the affirmative action of appropriation by all the provincial boards. On
that hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the salary of the
probation officer which is the situation now and, also, if we accept the contention that,
for the purpose of the Probation Act, the City of Manila should be considered as a province
and that the municipal board of said city has not made any appropriation for the salary of the
probation officer. These different situations suggested show, indeed, that while inequality
may result in the application of the law and in the conferment of the benefits therein
provided, inequality is not in all cases the necessary result. But whatever may be the case, it
is clear that in section 11 of the Probation Act creates a situation in which discrimination and
inequality are permitted or allowed. There are, to be sure, abundant authorities requiring
actual denial of the equal protection of the law before court should assume the task of setting
aside a law vulnerable on that score, but premises and circumstances considered, we are of
the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the
law and is on that account bad. We see no difference between a law which permits of such
denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits
of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy
Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92
U. S., 259; 23 Law. ed., 543;Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal
vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U.
S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220;
Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012;
Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake
Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In
other words, statutes may be adjudged unconstitutional because of their effect in operation
(General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754;
State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L.
p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs.
Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of
the Probation Act, not only may said Act be in force in one or several provinces and not be in
force in other provinces, but one province may appropriate for the salary of the probation
officer of a given year and have probation during that year and thereafter decline to
make further appropriation, and have no probation is subsequent years. While this situation
goes rather to the abuse of discretion which delegation implies, it is here indicated to show
that the Probation Act sanctions a situation which is intolerable in a government of laws, and
to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope
of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed.,
666; 17 Sup. Ct. Rep., 255.)
lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United
States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the
United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection of the laws because, as held in
Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991),
the guaranty of the equality clause does not require territorial uniformity. It should be
observed, however, that this case concerns the right to preliminary investigations in criminal
cases originally granted by General Orders No. 58. No question of legislative authority was
involved and the alleged denial of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No.
813) and providing in section 2 thereof that "in cases triable only in the court of first instance
of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney, after a due investigation of the facts
. . . shall have presented an information against him in proper form . . . ." Upon the other
hand, an analysis of the arguments and the decision indicates that the investigation by the
prosecuting attorney although not in the form had in the provinces was considered a
reasonable substitute for the City of Manila, considering the peculiar conditions of the city as
found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to
a situation where the constitution of Missouri permits appeals to the Supreme Court of the
state from final judgments of any circuit court, except those in certain counties for which
counties the constitution establishes a separate court of appeals called St. Louis Court of
Appeals. The provision complained of, then, is found in the constitution itself and it is the
constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void
because it is also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already
stated, the next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a
statute, and the courts will resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and is so independent and
separable that its removal will leave the constitutional features and purposes of the
act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649,
662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929],
278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.)
In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established
rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion, if separable from the valid, may stand and be
enforced. But in order to do this, the valid portion must be in so far independent of
the invalid portion that it is fair to presume that the Legislative would have enacted it
by itself if they had supposed that they could not constitutionally enact the other.
(Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446;
Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou.,
963.) Enough must remain to make a complete, intelligible, and valid statute, which
carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The
void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs.
A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255;
51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S.,
540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S.,
1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy for any purpose whatever,
and what remains must express the legislative will, independently of the void part,
since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W.,
473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759;
Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed.,
1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in
those provinces in which the respective provincial boards provided for the salaries of
probation officers were inoperative on constitutional grounds, the remainder of the Act would
still be valid and may be enforced. We should be inclined to accept the suggestions but for
the fact that said section is, in our opinion, is inseparably linked with the other portions of the
Act that with the elimination of the section what would be left is the bare idealism of the
system, devoid of any practical benefit to a large number of people who may be deserving of
the intended beneficial result of that system. The clear policy of the law, as may be gleaned
from a careful examination of the whole context, is to make the application of the system
dependent entirely upon the affirmative action of the different provincial boards through
appropriation of the salaries for probation officers at rates not lower than those provided for
provincial fiscals. Without such action on the part of the various boards, no probation officers
would be appointed by the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show that if not one of the
provinces and this is the actual situation now appropriate the necessary fund for the
salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a probation officer without the
probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the
probationer. Every probation officer is given, as to the person placed in probation under his
care, the powers of the police officer. It is the duty of the probation officer to see that the
conditions which are imposed by the court upon the probationer under his care are complied
with. Among those conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of
abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly;
"(g) Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or
losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or
regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and terms of
probation. Under section 4, it is only after the period of probation, the submission of a report
of the probation officer and appropriate finding of the court that the probationer has complied
with the conditions of probation that probation may be definitely terminated and the
probationer finally discharged from supervision. Under section 5, if the court finds that there
is non-compliance with said conditions, as reported by the probation officer, it may issue a
warrant for the arrest of the probationer and said probationer may be committed with or
without bail. Upon arraignment and after an opportunity to be heard, the court may revoke,
continue or modify the probation, and if revoked, the court shall order the execution of the
sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be
the duty of every probation officer to furnish to all persons placed on probation under his
supervision a statement of the period and conditions of their probation, and to instruct them
concerning the same; to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other measures, not
inconsistent with the conditions imposed by court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in writing to the court having jurisdiction
over said probationers at least once every two months concerning their conduct and
condition; to keep records of their work; make such report as are necessary for the
information of the Secretary of Justice and as the latter may require; and to perform such
other duties as are consistent with the functions of the probation officer and as the court or
judge may direct. The probation officers provided for in this Act may act as parole officers for
any penal or reformatory institution for adults when so requested by the authorities thereof,
and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision
and control, a Probation Office under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and consent of the Senate who
shall receive a salary of four eight hundred pesos per annum. To carry out this Act
there is hereby appropriated out of any funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint probation officers and the administrative
personnel of the probation officer under civil service regulations from among those
who possess the qualifications, training and experience prescribed by the Bureau of
Civil Service, and shall fix the compensation of such probation officers and
administrative personnel until such positions shall have been included in the
Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing
section are clearly not those probation officers required to be appointed for the provinces
under section 11. It may be said, reddendo singula singulis, that the probation officers
referred to in section 10 above-quoted are to act as such, not in the various provinces, but in
the central office known as the Probation Office established in the Department of Justice,
under the supervision of the Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the
probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the
probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the
probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable
inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period and terms of
probation (sec. 3, last par.), it means the probation officer who is in charge of a particular
probationer in a particular province. It never could have been intention of the legislature, for
instance, to require the probationer in Batanes, to report to a probationer officer in the City of
Manila, or to require a probation officer in Manila to visit the probationer in the said province
of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning
the conditions of his probation or to perform such other functions as are assigned to him by
law.
That under section 10 the Secretary of Justice may appoint as many probation officers as
there are provinces or groups of provinces is, of course possible. But this would be arguing
on what the law may be or should be and not on what the law is. Between is and ought there
is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think
a law better otherwise than it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend the law. We are not permitted to
read into the law matters and provisions which are not there. Not for any purpose not
even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces but to make the
provinces defray them should they desire to have the Probation Act apply thereto. The sum
of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other
things, for the salaries of probation officers in the central office at Manila. These probation
officers are to receive such compensations as the Secretary of Justice may fix "until such
positions shall have been included in the Appropriation Act". It was the intention of the
legislature to empower the Secretary of Justice to fix the salaries of the probation officers in
the provinces or later on to include said salaries in an appropriation act. Considering, further,
that the sum of P50,000 appropriated in section 10 is to cover, among other things, the
salaries of the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation officers
in the provinces. We take judicial notice of the fact that there are 48 provinces in the
Philippines and we do not think it is seriously contended that, with the fifty thousand pesos
appropriated for the central office, there can be in each province, as intended, a probation
officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention
that without section 11 of Act No. 4221 said act is complete is an impracticable thing under
the remainder of the Act, unless it is conceded that in our case there can be a system of
probation in the provinces without probation officers.
Probation as a development of a modern penology is a commendable system. Probation
laws have been enacted, here and in other countries, to permit what modern criminologist
call the "individualization of the punishment", the adjustment of the penalty to the character
of the criminal and the circumstances of his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases,
convicts may be reformed and their development into hardened criminals aborted. It,
therefore, takes advantage of an opportunity for reformation and avoids imprisonment so
long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S.,
347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F.
[2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual
convict is merely incidental. But while we believe that probation is commendable as a system
and its implantation into the Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects
presented by able counsel for both parties, as well in their memorandums as in their oral
argument. We have examined the cases brought to our attention, and others we have been
able to reach in the short time at our command for the study and deliberation of this case. In
the examination of the cases and in then analysis of the legal principles involved we have
inclined to adopt the line of action which in our opinion, is supported better reasoned
authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by
certain adjudicated cases brought to our attention, except where the point or principle is
settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:
(a) The constitutional relations between the Federal and the State governments of
the United States and the dual character of the American Government is a situation
which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with
reference to the Federal Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs.
Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner
vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace
with . . . new developments of times and circumstances" (Chief Justice Waite in
Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed.,
708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental
principles should be interpreted having in view existing local conditions and
environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.

XM

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

XM

Hochgeladen von

Copyright:

Verfügbare Formate

PASCUAL V SECRETARY

Republic of the Philippines

December 29, 1960

WENCESLAO PASCUAL, in his official capacity as Provincial Governor of

BUGNAY CONSTRUCTION V LARON

13 Annex 1 1, Id.; Rollo, 535.

G.R. No. 114222 April 6, 1995

(2) the Build-Lease-Transfer (BLT) scheme provided in the agreements is not

foreign and/or domestic sources and/or engage the services of a foreign

MENDOZA, J., concurring:

DAVIDE, JR., J., dissenting:

a. Section 2 by adding to the original BOT and BT schemes the following

Sec. 5-A. Direct Negotiation Of Contracts Direct negotiation, shall be

amendment or by the circumstances surrounding its enactment. (1 Frank E.

In these cases, bidding may be undertaken through sealed canvass of at

(d) If, after prequalification, more than one contractor, only

The following may be become contractors for government projects:

3 Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Sanidad v

[G.R. No. 159139. January 13, 2004]

CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE

Registration and Validation System; Phase II - Automated Counting and

In a letter-reply dated June 6, 2003, [15] the Comelec chairman -- speaking

Respondents chorus that petitioners do not possess locus standi, inasmuch

5. Refused to declare a failed bidding and to conduct a re-bidding despite the

Neither does an official receipt issued to MPC, acknowledging payment for

However, there is no sign whatsoever of any joint venture agreement,

not only by a single joint venture agreement, but also by supplementary

A Teaming Agreement between MPEI and ePLDT.

Respondents declare that, for purposes of assessing the eligibility of the

When questioned on this matter during the Oral Argument, Commissioner

Unfortunately, the Certifications from DOST fail to divulge in what manner

In its Partial Compliance and Manifestation dated December 29, 2003,

The foregoing passage shows the imprudent approach adopted by Comelec

Republic v. Cocofed, 372 SCRA 462, 493, December 14, 2001.

Taada v. Angara, 272 SCRA 18, 79, May 2, 1997.

An act authorizing the Commission on Elections to conduct a nationwide demonstration of a

Id., pp. 21-23 & 80-82.

According to Public Respondent Comelecs Memorandum prepared by the OSG, p. 8; rollo,

Photocopy appended as Annex B of the Petition; rollo, Vol. I, pp. 52-53.

Photocopy appended as Annex C of the Petition; rollo, Vol. I, pp. 54-55.

Kilosbayan, Inc. v. Morato, supra.

Dumlao v. Comelec, 95 SCRA 392, January 22, 1980, per Melencio-Herrera, J.

Respondent Comelecs Memorandum, pp. 50-51.

The law obliges no one to perform the impossible.

See private respondents Memorandum, p. 60.

Photocopy appended as Annex B of the petition.

334 Phil. 146, January 10, 1997.

Id., p. 153, per Torres Jr., J.

TSN, October 7, 2003, p. 104.

Id., pp. 104-105.

Id., pp. 103-108.

Id., pp. 108-114.

Id., pp. 142-145.

The date was carelessly stated as ____ May, 2003.

Annex I of the Petition, Vol. I, pp. 116-118.

packages for that crucial democratic exercise--several hundred thousand lines of

Dated ____ May, 2003 but notarized on June 30, 2003.

VIVENCIO V. JUMAMIL, G.R. No. 144570

DANIEL GATCHALIAN, RUBEN

LAPUT, ROSEMARIE WEE,

In this petition for review on certiorari under Rule 45 of the

The Regional Trial Court dismissed petitioners petition for

The factual antecedents follow.