G.R. No.

159694

January 27, 2006

COMMISSIONER OF INTERNAL REVENUE, Petitioner,

vs.
AZUCENA T. REYES, Respondent.
x -- -- -- -- -- -- -- -- -- -- -- -- -- x
G.R. No. 163581

January 27, 2006

AZUCENA T. REYES, Petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
DECISION
PANGANIBAN, CJ.:
Under the present provisions of the Tax Code and pursuant to elementary due process, taxpayers
must be informed in writing of the law and the facts upon which a tax assessment is based;
otherwise, the assessment is void. Being invalid, the assessment cannot in turn be used as a basis
for the perfection of a tax compromise.
The Case
Before us are two consolidated1 Petitions for Review2 filed under Rule 45 of the Rules of Court,
assailing the August 8, 2003 Decision3 of the Court of Appeals (CA) in CA-GR SP No. 71392. The
dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Tax Appeals is
ANNULLED and SET ASIDE without prejudice to the action of the National Evaluation Board on the
proposed compromise settlement of the Maria C. Tancinco estates tax liability." 4
The Facts
The CA narrated the facts as follows:
"On July 8, 1993, Maria C. Tancinco (or decedent) died, leaving a 1,292 square-meter residential lot
and an old house thereon (or subject property) located at 4931 Pasay Road, Dasmarias Village,
Makati City.
"On the basis of a sworn information-for-reward filed on February 17, 1997 by a certain Raymond
Abad (or Abad), Revenue District Office No. 50 (South Makati) conducted an investigation on the
decedents estate (or estate). Subsequently, it issued a Return Verification Order. But without the
required preliminary findings being submitted, it issued Letter of Authority No. 132963 for the regular
investigation of the estate tax case. Azucena T. Reyes (or [Reyes]), one of the decedents heirs,
received the Letter of Authority on March 14, 1997.
"On February 12, 1998, the Chief, Assessment Division, Bureau of Internal Revenue (or BIR),
issued a preliminary assessment notice against the estate in the amount of P14,580,618.67. On May
10, 1998, the heirs of the decedent (or heirs) received a final estate tax assessment notice and a

demand letter, both dated April 22, 1998, for the amount of P14,912,205.47, inclusive of surcharge
and interest.
"On June 1, 1998, a certain Felix M. Sumbillo (or Sumbillo) protested the assessment [o]n behalf of
the heirs on the ground that the subject property had already been sold by the decedent sometime in
1990.
"On November 12, 1998, the Commissioner of Internal Revenue (or [CIR]) issued a preliminary
collection letter to [Reyes], followed by a Final Notice Before Seizure dated December 4, 1998.
"On January 5, 1999, a Warrant of Distraint and/or Levy was served upon the estate, followed on
February 11, 1999 by Notices of Levy on Real Property and Tax Lien against it.
"On March 2, 1999, [Reyes] protested the notice of levy. However, on March 11, 1999, the heirs
proposed a compromise settlement of P1,000,000.00.
"In a letter to [the CIR] dated January 27, 2000, [Reyes] proposed to pay 50% of the basic tax due,
citing the heirs inability to pay the tax assessment. On March 20, 2000, [the CIR] rejected [Reyess]
offer, pointing out that since the estate tax is a charge on the estate and not on the heirs, the latters
financial incapacity is immaterial as, in fact, the gross value of the estate amounting
to P32,420,360.00 is more than sufficient to settle the tax liability. Thus, [the CIR] demanded
payment of the amount of P18,034,382.13 on or before April 15, 2000[;] otherwise, the notice of sale
of the subject property would be published.
"On April 11, 2000, [Reyes] again wrote to [the CIR], this time proposing to pay 100% of the basic tax
due in the amount of P5,313,891.00. She reiterated the proposal in a letter dated May 18, 2000.
"As the estate failed to pay its tax liability within the April 15, 2000 deadline, the Chief, Collection
Enforcement Division, BIR, notified [Reyes] on June 6, 2000 that the subject property would be sold
at public auction on August 8, 2000.
"On June 13, 2000, [Reyes] filed a protest with the BIR Appellate Division. Assailing the scheduled
auction sale, she asserted that x x x the assessment, letter of demand[,] and the whole tax
proceedings against the estate are void ab initio. She offered to file the corresponding estate tax
return and pay the correct amount of tax without surcharge [or] interest.
"Without acting on [Reyess] protest and offer, [the CIR] instructed the Collection Enforcement
Division to proceed with the August 8, 2000 auction sale. Consequently, on June 28, 2000, [Reyes]
filed a [P]etition for [R]eview with the Court of Tax Appeals (or CTA), docketed as CTA Case No.
6124.
"On July 17, 2000, [Reyes] filed a Motion for the Issuance of a Writ of Preliminary Injunction or
Status Quo Order, which was granted by the CTA on July 26, 2000. Upon [Reyess] filing of a surety
bond in the amount ofP27,000,000.00, the CTA issued a [R]esolution dated August 16, 2000
ordering [the CIR] to desist and refrain from proceeding with the auction sale of the subject property
or from issuing a [W]arrant of [D]istraint or [G]arnishment of [B]ank [A]ccount[,] pending
determination of the case and/or unless a contrary order is issued.
"[The CIR] filed a [M]otion to [D]ismiss the petition on the grounds (i) that the CTA no longer has
jurisdiction over the case[,] because the assessment against the estate is already final and

executory; and (ii) that the petition was filed out of time. In a [R]esolution dated November 23, 2000,
the CTA denied [the CIRs] motion.
"During the pendency of the [P]etition for [R]eview with the CTA, however, the BIR issued Revenue
Regulation (or RR) No. 6-2000 and Revenue Memorandum Order (or RMO) No. 42-2000 offering
certain taxpayers with delinquent accounts and disputed assessments an opportunity to compromise
their tax liability.
"On November 25, 2000, [Reyes] filed an application with the BIR for the compromise settlement (or
compromise) of the assessment against the estate pursuant to Sec. 204(A) of the Tax Code, as
implemented by RR No. 6-2000 and RMO No. 42-2000.
"On December 26, 2000, [Reyes] filed an Ex-Parte Motion for Postponement of the hearing before
the CTA scheduled on January 9, 2001, citing her pending application for compromise with the BIR.
The motion was granted and the hearing was reset to February 6, 2001.
"On January 29, 2001, [Reyes] moved for postponement of the hearing set on February 6, 2001, this
time on the ground that she had already paid the compromise amount of P1,062,778.20 but was still
awaiting approval of the National Evaluation Board (or NEB). The CTA granted the motion and reset
the hearing to February 27, 2001.
"On February 19, 2001, [Reyes] filed a Motion to Declare Application for the Settlement of Disputed
Assessment as a Perfected Compromise. In said motion, she alleged that [the CIR] had not yet
signed the compromise[,] because of procedural red tape requiring the initials of four Deputy
Commissioners on relevant documents before the compromise is signed by the [CIR]. [Reyes]
posited that the absence of the requisite initials and signature[s] on said documents does not vitiate
the perfected compromise.
"Commenting on the motion, [the CIR] countered that[,] without the approval of the NEB, [Reyess]
application for compromise with the BIR cannot be considered a perfected or consummated
compromise.
"On March 9, 2001, the CTA denied [Reyess] motion, prompting her to file a Motion for
Reconsideration Ad Cautelam. In a [R]esolution dated April 10, 2001, the CTA denied the [M]otion for
[R]econsideration with the suggestion that[,] for an orderly presentation of her case and to prevent
piecemeal resolutions of different issues, [Reyes] should file a [S]upplemental [P]etition for
[R]eview[,] setting forth the new issue of whether there was already a perfected compromise.
"On May 2, 2001, [Reyes] filed a Supplemental Petition for Review with the CTA, followed on June 4,
2001 by its Amplificatory Arguments (for the Supplemental Petition for Review), raising the following
issues:
1. Whether or not an offer to compromise by the [CIR], with the acquiescence by the Secretary of
Finance, of a tax liability pending in court, that was accepted and paid by the taxpayer, is a perfected
and consummated compromise.
2. Whether this compromise is covered by the provisions of Section 204 of the Tax Code (CTRP)
that requires approval by the BIR [NEB].

"Answering the Supplemental Petition, [the CIR] averred that an application for compromise of a tax
liability under RR No. 6-2000 and RMO No. 42-2000 requires the evaluation and approval of either
the NEB or the Regional Evaluation Board (or REB), as the case may be.
"On June 14, 2001, [Reyes] filed a Motion for Judgment on the Pleadings; the motion was granted
on July 11, 2001. After submission of memoranda, the case was submitted for [D]ecision.
"On June 19, 2002, the CTA rendered a [D]ecision, the decretal portion of which pertinently reads:
WHEREFORE, in view of all the foregoing, the instant [P]etition for [R]eview is hereby DENIED.
Accordingly, [Reyes] is hereby ORDERED to PAY deficiency estate tax in the amount of Nineteen
Million Five Hundred Twenty Four Thousand Nine Hundred Nine and 78/100 (P19,524,909.78),
computed as follows:
xxxxxxxxx
[Reyes] is likewise ORDERED to PAY 20% delinquency interest on deficiency estate tax due
of P17,934,382.13 from January 11, 2001 until full payment thereof pursuant to Section 249(c) of the
Tax Code, as amended.
"In arriving at its decision, the CTA ratiocinated that there can only be a perfected and consummated
compromise of the estates tax liability[,] if the NEB has approved [Reyess] application for
compromise in accordance with RR No. 6-2000, as implemented by RMO No. 42-2000.
"Anent the validity of the assessment notice and letter of demand against the estate, the CTA stated
that at the time the questioned assessment notice and letter of demand were issued, the heirs knew
very well the law and the facts on which the same were based. It also observed that the petition was
not filed within the 30-day reglementary period provided under Sec. 11 of Rep. Act No. 1125 and
Sec. 228 of the Tax Code."5
Ruling of the Court of Appeals
In partly granting the Petition, the CA said that Section 228 of the Tax Code and RR 12-99 were
mandatory and unequivocal in their requirement. The assessment notice and the demand letter
should have stated the facts and the law on which they were based; otherwise, they were deemed
void.6 The appellate court held that while administrative agencies, like the BIR, were not bound by
procedural requirements, they were still required by law and equity to observe substantive due
process. The reason behind this requirement, said the CA, was to ensure that taxpayers would be
duly apprised of -- and could effectively protest -- the basis of tax assessments against them. 7 Since
the assessment and the demand were void, the proceedings emanating from them were likewise
void, and any order emanating from them could never attain finality.
The appellate court added, however, that it was premature to declare as perfected and
consummated the compromise of the estates tax liability. It explained that, where the basic tax
assessed exceeded P1 million, or where the settlement offer was less than the prescribed minimum
rates, the National Evaluation Boards (NEB) prior evaluation and approval were the conditio sine
qua non to the perfection and consummation of any compromise. 8 Besides, the CA pointed out,
Section 204(A) of the Tax Code applied to all compromises, whether government-initiated or
not.9 Where the law did not distinguish, courts too should not distinguish.
Hence, this Petition.10

The Issues
In GR No. 159694, petitioner raises the following issues for the Courts consideration:
"I.
Whether petitioners assessment against the estate is valid.
"II.
Whether respondent can validly argue that she, as well as the other heirs, was not aware of the facts
and the law on which the assessment in question is based, after she had opted to propose several
compromises on the estate tax due, and even prematurely acting on such proposal by paying 20%
of the basic estate tax due."11
The foregoing issues can be simplified as follows: first, whether the assessment against the estate is
valid; and, second, whether the compromise entered into is also valid.
The Courts Ruling
The Petition is unmeritorious.
First Issue:
Validity of the Assessment Against the Estate
The second paragraph of Section 228 of the Tax Code12 is clear and mandatory. It provides as
follows:
"Sec. 228. Protesting of Assessment. -xxxxxxxxx
"The taxpayers shall be informed in writing of the law and the facts on which the assessment is
made: otherwise, the assessment shall be void."
In the present case, Reyes was not informed in writing of the law and the facts on which the
assessment of estate taxes had been made. She was merely notified of the findings by the CIR, who
had simply relied upon the provisions of former Section 229 13 prior to its amendment by Republic Act
(RA) No. 8424, otherwise known as the Tax Reform Act of 1997.
First, RA 8424 has already amended the provision of Section 229 on protesting an assessment. The
old requirement of merely notifying the taxpayer of the CIRs findings was changed in 1998
to informing the taxpayer of not only the law, but also of the facts on which an assessment would be
made; otherwise, the assessment itself would be invalid.
It was on February 12, 1998, that a preliminary assessment notice was issued against the estate. On
April 22, 1998, the final estate tax assessment notice, as well as demand letter, was also issued.
During those dates, RA 8424 was already in effect. The notice required under the old law was no
longer sufficient under the new law.

To be simply informed in writing of the investigation being conducted and of the recommendation for
the assessment of the estate taxes due is nothing but a perfunctory discharge of the tax function of
correctly assessing a taxpayer. The act cannot be taken to mean that Reyes already knew the law
and the facts on which the assessment was based. It does not at all conform to the compulsory
requirement under Section 228. Moreover, the Letter of Authority received by respondent on March
14, 1997 was for the sheer purpose of investigation and was not even the requisite notice under the
law.
The procedure for protesting an assessment under the Tax Code is found in Chapter III of Title VIII,
which deals with remedies. Being procedural in nature, can its provision then be applied
retroactively? The answer is yes.
The general rule is that statutes are prospective. However, statutes that are remedial, or that do not
create new or take away vested rights, do not fall under the general rule against the retroactive
operation of statutes.14Clearly, Section 228 provides for the procedure in case an assessment is
protested. The provision does not create new or take away vested rights. In both instances, it can
surely be applied retroactively. Moreover, RA 8424 does not state, either expressly or by necessary
implication, that pending actions are excepted from the operation of Section 228, or that applying it
to pending proceedings would impair vested rights.
Second, the non-retroactive application of Revenue Regulation (RR) No. 12-99 is of no moment,
considering that it merely implements the law.
A tax regulation is promulgated by the finance secretary to implement the provisions of the Tax
Code.15 While it is desirable for the government authority or administrative agency to have one
immediately issued after a law is passed, the absence of the regulation does not automatically mean
that the law itself would become inoperative.
At the time the pre-assessment notice was issued to Reyes, RA 8424 already stated that the
taxpayer must be informed of both the law and facts on which the assessment was based. Thus, the
CIR should have required the assessment officers of the Bureau of Internal Revenue (BIR) to follow
the clear mandate of the new law. The old regulation governing the issuance of estate tax
assessment notices ran afoul of the rule that tax regulations -- old as they were -- should be in
harmony with, and not supplant or modify, the law.16
It may be argued that the Tax Code provisions are not self-executory. It would be too wide a stretch
of the imagination, though, to still issue a regulation that would simply require tax officials to inform
the taxpayer, in any manner, of the law and the facts on which an assessment was based. That
requirement is neither difficult to make nor its desired results hard to achieve.
Moreover, an administrative rule interpretive of a statute, and not declarative of certain rights and
corresponding obligations, is given retroactive effect as of the date of the effectivity of the
statute.17 RR 12-99 is one such rule. Being interpretive of the provisions of the Tax Code, even if it
was issued only on September 6, 1999, this regulation was to retroact to January 1, 1998 -- a date
prior to the issuance of the preliminary assessment notice and demand letter.
Third, neither Section 229 nor RR 12-85 can prevail over Section 228 of the Tax Code.
No doubt, Section 228 has replaced Section 229. The provision on protesting an assessment has
been amended. Furthermore, in case of discrepancy between the law as amended and its
implementing but old regulation, the former necessarily prevails.18 Thus, between Section 228 of the
Tax Code and the pertinent provisions of RR 12-85, the latter cannot stand because it cannot go

beyond the provision of the law. The law must still be followed, even though the existing tax
regulation at that time provided for a different procedure. The regulation then simply provided that
notice be sent to the respondent in the form prescribed, and that no consequence would ensue for
failure to comply with that form.
Fourth, petitioner violated the cardinal rule in administrative law that the taxpayer be accorded due
process. Not only was the law here disregarded, but no valid notice was sent, either. A void
assessment bears no valid fruit.
The law imposes a substantive, not merely a formal, requirement. To proceed heedlessly with tax
collection without first establishing a valid assessment is evidently violative of the cardinal principle
in administrative investigations: that taxpayers should be able to present their case and adduce
supporting evidence.19 In the instant case, respondent has not been informed of the basis of the
estate tax liability. Without complying with the unequivocal mandate of first informing the taxpayer of
the governments claim, there can be no deprivation of property, because no effective protest can be
made.20 The haphazard shot at slapping an assessment, supposedly based on estate taxations
general provisions that are expected to be known by the taxpayer, is utter chicanery.
Even a cursory review of the preliminary assessment notice, as well as the demand letter sent,
reveals the lack of basis for -- not to mention the insufficiency of -- the gross figures and details of
the itemized deductions indicated in the notice and the letter. This Court cannot countenance an
assessment based on estimates that appear to have been arbitrarily or capriciously arrived at.
Although taxes are the lifeblood of the government, their assessment and collection "should be
made in accordance with law as any arbitrariness will negate the very reason for government itself." 21
Fifth, the rule against estoppel does not apply. Although the government cannot be estopped by the
negligence or omission of its agents, the obligatory provision on protesting a tax assessment cannot
be rendered nugatory by a mere act of the CIR .
Tax laws are civil in nature.22 Under our Civil Code, acts executed against the mandatory provisions
of law are void, except when the law itself authorizes the validity of those acts. 23 Failure to comply
with Section 228 does not only render the assessment void, but also finds no validation in any
provision in the Tax Code. We cannot condone errant or enterprising tax officials, as they are
expected to be vigilant and law-abiding.
Second Issue:
Validity of Compromise
It would be premature for this Court to declare that the compromise on the estate tax liability has
been perfected and consummated, considering the earlier determination that the assessment
against the estate was void. Nothing has been settled or finalized. Under Section 204(A) of the Tax
Code, where the basic tax involved exceeds one million pesos or the settlement offered is less than
the prescribed minimum rates, the compromise shall be subject to the approval of the NEB
composed of the petitioner and four deputy commissioners.
Finally, as correctly held by the appellate court, this provision applies to all compromises, whether
government-initiated or not. Ubi lex non distinguit, nec nos distinguere debemos. Where the law
does not distinguish, we should not distinguish.

WHEREFORE, the Petition is hereby DENIED and the assailed Decision AFFIRMED. No
pronouncement as to costs.
SO ORDERED.

A.M. No. 10-10-4-SC

March 8, 2011

RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A STATEMENT

BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE
ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent law professors 1 in
response to the Resolution dated October 19, 2010 (the Show Cause Resolution), directing them to
show cause why they should not be disciplined as members of the Bar for violation of specific
provisions of the Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an
administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of
Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice
Sereno) to the said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary
proceeding grounded on an allegedly irregularly concluded finding of indirect contempt as intimated
by Associate Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both
the October 19, 2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds
that with the exception of one respondent whose compliance was adequate and another who
manifested he was not a member of the Philippine Bar, the submitted explanations, being mere
denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses
even more urgently behoove this Court to call the attention of respondent law professors, who are
members of the Bar, to the relationship of their duties as such under the Code of Professional
Responsibility to their civil rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as follows:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land and promote respect
for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law
or at lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in
court; nor shall he mislead, or allow the Court to be misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of
paper, the language or the argument of opposing counsel, or the text of a decision or
authority, or knowingly cite as law a provision already rendered inoperative by repeal
or amendment, or assert as a fact that which has not been proved.

Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them
to defeat the ends of justice.
CANON 11 A lawyer shall observe and maintain the respect due to the courts and to judicial
officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 13 A lawyer shall rely upon the merits of his cause and refrain from any impropriety
which tends to influence, or gives the appearance of influencing the court.
Established jurisprudence will undeniably support our view that when lawyers speak their minds,
they must ever be mindful of their sworn oath to observe ethical standards of their profession, and in
particular, avoid foul and abusive language to condemn the Supreme Court, or any court for that
matter, for a decision it has rendered, especially during the pendency of a motion for such decisions
reconsideration. The accusation of plagiarism against a member of this Court is not the real issue
here but rather this plagiarism issue has been used to deflect everyones attention from the actual
concern of this Court to determine by respondents explanations whether or not respondent
members of the Bar have crossed the line of decency and acceptable professional conduct and
speech and violated the Rules of Court through improper intervention or interference as third parties
to a pending case. Preliminarily, it should be stressed that it was respondents themselves who called
upon the Supreme Court to act on their Statement,2 which they formally submitted, through Dean
Marvic M.V.F. Leonen (Dean Leonen), for the Courts proper disposition. Considering the defenses of
freedom of speech and academic freedom invoked by the respondents, it is worth discussing here
that the legal reasoning used in the past by this Court to rule that freedom of expression is not a
defense in administrative cases against lawyers for using intemperate speech in open court or in
court submissions can similarly be applied to respondents invocation of academic freedom. Indeed,
it is precisely because respondents are not merely lawyers but lawyers who teach law and mould the
minds of young aspiring attorneys that respondents own non-observance of the Code of
Professional Responsibility, even if purportedly motivated by the purest of intentions, cannot be
ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents actuations, it is apropos to revisit the
factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in
Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the
counsel3 for Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya
decision, raising solely the following grounds:
I. Our own constitutional and jurisprudential histories reject this Honorable Courts (sic)
assertion that the Executives foreign policy prerogatives are virtually unlimited; precisely,
under the relevant jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and humanitarian standards, including those
provided for in the relevant international conventions of which the Philippines is a party.4

II. This Honorable Court has confused diplomatic protection with the broader, if fundamental,
responsibility of states to protect the human rights of its citizens especially where the rights
asserted are subject of erga omnes obligations and pertain to jus cogens norms. 5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and
Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R.
No. 162230, where they posited for the first time their charge of plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted
that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURTS JUDGMENT
OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES AN ARTICLE PUBLISHED IN
2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE
CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW AND MAKE IT APPEAR THAT
THESE SOURCES SUPPORT THE JUDGMENTS ARGUMENTS FOR DISMISSING THE INSTANT
PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR
THE PETITIONS CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive
plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia to
suit the arguments of the assailed Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were
namely: (1) Evan J. Criddle and Evan Fox-Decents article "A Fiduciary Theory of Jus Cogens;" 9 (2)
Christian J. Tams book Enforcing Erga Omnes Obligations in International Law; 10 and (3) Mark Ellis
article "Breaking the Silence: On Rape as an International Crime." 11
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010,
journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized
parts of ruling on comfort women," on the Newsbreak website.12 The same article appeared on the
GMA News TV website also on July 19, 2010.13
On July 22, 2010, Atty. Roques column, entitled "Plagiarized and Twisted," appeared in the Manila
Standard Today.14 In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors
purportedly not properly acknowledged in the Vinuya decision, confirmed that his work, co-authored
with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof. Criddles response to
the post by Julian Ku regarding the news report15 on the alleged plagiarism in the international law
blog, Opinio Juris. Prof. Criddle responded to Kus blog entry in this wise:
The newspapers16 [plagiarism] claims are based on a motion for reconsideration filed yesterday with
the Philippine Supreme Court yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
The motion suggests that the Courts decision contains thirty-four sentences and citations that are
identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent).
Professor Fox-Decent and I were unaware of the petitioners [plagiarism] allegations until after the
motion was filed today.

Speaking for myself, the most troubling aspect of the courts jus cogens discussion is that it implies
that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens
norms. Our article emphatically asserts the opposite. The Supreme Courts decision is available
here:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm 17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the
charge of plagiarism contained in the Supplemental Motion for Reconsideration. 18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr.
Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last few days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of
the integrity of my work as an academic and as an advocate of human rights and humanitarian law,
to take exception to the possible unauthorized use of my law review article on rape as an
international crime in your esteemed Courts Judgment in the case of Vinuya et al. v. Executive
Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the Philippine
chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI), 19 an affiliate of the Londonbased Media Legal Defence Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28,
of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may
have misread the arguments I made in the article and employed them for cross purposes. This
would be ironic since the article was written precisely to argue for the appropriate legal remedy for
victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal of International
Law in 2006 has been made available to your esteemed Court. I trust that your esteemed Court will
take the time to carefully study the arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the issues raised by this
letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on
Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal
Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred
the July 22, 2010 letter of Justice Del Castillo to the Ethics Committee. The matter was subsequently
docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the
letter of Justice Del Castillo.21

On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement by the
Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and
Misrepresentation in the Supreme Court" (the Statement), was posted in Newsbreaks website 22 and
on Atty. Roques blog.23 A report regarding the statement also appeared on various on-line news
sites, such as the GMA News TV24 and the Sun Star25 sites, on the same date. The statement was
likewise posted at the University of the Philippines College of Laws bulletin board allegedly on
August 10, 201026 and at said colleges website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the
Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C.
Corona (Chief Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through:

Hon. Renato C. Corona

Chief Justice

Subject:

Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary

Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-]eight
(38)28members of the faculty of the UP College of Law. We hope that its points could be considered
by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain the actual signatures
of the alleged signatories but only stated the names of 37 UP Law professors with the notation
(SGD.) appearing beside each name. For convenient reference, the text of the UP Law faculty
Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave Filipinas who had
suffered abuse during a time of war. After they courageously came out with their very personal

stories of abuse and suffering as "comfort women", waited for almost two decades for any
meaningful relief from their own government as well as from the government of Japan, got their
hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R. No.
162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of
dishonesty and misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of Law views the
charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation
in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the
individual scholars whose work have been appropriated without correct attribution, but also a serious
threat to the integrity and credibility of the Philippine Judicial System.
In common parlance, plagiarism is the appropriation and misrepresentation of another persons
work as ones own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a
taking of someone elses ideas and expressions, including all the effort and creativity that went into
committing such ideas and expressions into writing, and then making it appear that such ideas and
expressions were originally created by the taker. It is dishonesty, pure and simple. A judicial system
that allows plagiarism in any form is one that allows dishonesty. Since all judicial decisions form part
of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by
dishonest means. Evidently, this is a complete perversion and falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material shows that the ponente merely
copied select portions of other legal writers works and interspersed them into the decision as if they
were his own, original work. Under the circumstances, however, because the Decision has been
promulgated by the Court, the Decision now becomes the Courts and no longer just the ponentes.
Thus the Court also bears the responsibility for the Decision. In the absence of any mention of the
original writers names and the publications from which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and the spokesman
of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to
the primary sources relied upon. This cursory explanation is not acceptable, because the original
authors writings and the effort they put into finding and summarizing those primary sources are
precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their
writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence
of a deliberate intention to appropriate the original authors work of organizing and analyzing those
primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar with all legal and
scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the
more demands correct and careful attribution and citation of the material relied upon. It is a matter of
diligence and competence expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan Criddle and
Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled
"A Fiduciary Theory of Jus Cogens," the main source of the plagiarized text. In this article they argue
that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity
have attained the status of jus cogens, making it obligatory upon the State to seek remedies on
behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the
contrary conclusion. This exacerbates the intellectual dishonesty of copying works without attribution
by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.

The case is a potential landmark decision in International Law, because it deals with State liability
and responsibility for personal injury and damage suffered in a time of war, and the role of the
injured parties home States in the pursuit of remedies against such injury or damage. National
courts rarely have such opportunities to make an international impact. That the petitioners were
Filipino "comfort women" who suffered from horrific abuse during the Second World War made it
incumbent on the Court of last resort to afford them every solicitude. But instead of acting with
urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths
of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition
based on misrepresented and plagiarized materials, the Court decided this case based on polluted
sources. By so doing, the Supreme Court added insult to injury by failing to actually exercise its
"power to urge and exhort the Executive Department to take up the claims of
the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies a
more alarming lack of concern for even the most basic values of decency and respect. The
reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before
other Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept
excuses for failure to attain the highest standards of conduct imposed upon all members of the
Bench and Bar because these undermine the very foundation of its authority and power in a
democratic society. Given the Courts recent history and the controversy that surrounded it, it cannot
allow the charges of such clear and obvious plagiarism to pass without sanction as this would only
further erode faith and confidence in the judicial system. And in light of the significance of this
decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who
have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly
deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without ensuring that its own
conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes
ensuring that not only the content, but also the processes of preparing and writing its own decisions,
are credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not
casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and
guidance. It is an absolutely essential step toward the establishment of a higher standard of
professional care and practical scholarship in the Bench and Bar, which are critical to improving the
system of administration of justice in the Philippines. It is also a very crucial step in ensuring the
position of the Supreme Court as the Final Arbiter of all controversies: a position that requires
competence and integrity completely above any and all reproach, in accordance with the exacting
demands of judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust reposed upon them as
teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine
College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is
unacceptable, unethical and in breach of the high standards of moral conduct and
judicial and professional competence expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility of the entire
Supreme Court and undermines the foundations of the Philippine judicial system by
allowing implicitly the decision of cases and the establishment of legal precedents
through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to
the primordial function of the Supreme Court as the ultimate dispenser of justice to all
those who have been left without legal or equitable recourse, such as the petitioners
therein;
(4) In light of the extremely serious and far-reaching nature of the dishonesty and to
save the honor and dignity of the Supreme Court as an institution, it is necessary for
the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice
to any other sanctions that the Court may consider appropriate;
(5) The Supreme Court must take this opportunity to review the manner by which it
conducts research, prepares drafts, reaches and finalizes decisions in order to
prevent a recurrence of similar acts, and to provide clear and concise guidance to the
Bench and Bar to ensure only the highest quality of legal research and writing in
pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.
(SGD.) MARVIC M.V.F. LEONEN
Dean and Professor of Law
(SGD.) FROILAN M. BACUNGAN
Dean (1978-1983)

(SGD.) PACIFICO A. AGABIN

Dean (1989-1995)

(SGD.) MERLIN M. MAGALLONA

Dean (1995-1999)

(SGD.) SALVADOR T. CARLOTA

Dean (2005-2008) and Professor of Law

REGULAR FACULTY
(SGD.) CARMELO V. SISON
Professor

(SGD.) JAY L. BATONGBACAL

Assistant Professor

(SGD.) PATRICIA R.P. SALVADOR

DAWAY
Associate Dean and Associate Professor

(SGD.) EVELYN (LEO) D. BATTAD

Assistant Professor

(SGD.) DANTE B. GATMAYTAN

Associate Professor

(SGD.) GWEN G. DE VERA

Assistant Professor

(SGD.) THEODORE O. TE
Assistant Professor

(SGD.) SOLOMON F. LUMBA

Assistant Professor

(SGD.) FLORIN T. HILBAY

Assistant Professor

(SGD.) ROMMEL J. CASIS

Assistant Professor
LECTURERS

(SGD.) JOSE GERARDO A. ALAMPAY

(SGD.) JOSE C. LAURETA

(SGD.) ARTHUR P. AUTEA

(SGD.) ROSA MARIA J. BAUTISTA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O. CORONEL
(SGD.) ROSARIO O. GALLO
(SGD.) CONCEPCION L. JARDELEZA
(SGD.) ANTONIO G.M. LA VIA
(SGD.) CARINA C. LAFORTEZA

(SGD.) DINA D. LUCENARIO

(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) RODOLFO NOEL S. QUIMBO
(SGD.) GMELEEN FAYE B. TOMBOC
(SGD.) NICHOLAS FELIX L. TY
(SGD.) EVALYN G. URSUA
(SGD.) RAUL T. VASQUEZ
(SGD.) SUSAN D. VILLANUEVA29
(Underscoring supplied.)

Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments on
the alleged plagiarism issue to the Court.30 We quote Prof. Tams letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the University of Glasgow.
I am writing to you in relation to the use of one of my publications in the above-mentioned judgment
of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Courts Judgment, in the
section addressing the concept of obligations erga omnes. As the table annexed to this letter shows,
the relevant sentences were taken almost word by word from the introductory chapter of my book
Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note
that there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation
to a citation from another author (Bruno Simma) rather than with respect to the substantive
passages reproduced in the Judgment, I do not think it can be considered an appropriate form of
referencing.
I am particularly concerned that my work should have been used to support the Judgments cautious
approach to the erga omnes concept. In fact, a most cursory reading shows that my books central
thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and
has a firm place in contemporary international law. Hence the introductory chapter notes that "[t]he
present study attempts to demystify aspects of the very mysterious concept and thereby to facilitate
its implementation" (p. 5). In the same vein, the concluding section notes that "the preceding
chapters show that the concept is now a part of the reality of international law, established in the
jurisprudence of courts and the practice of States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work should have been
cited to support as it seemingly has the opposite approach. More generally, I am concerned at
the way in which your Honourable Courts Judgment has drawn on scholarly work without properly
acknowledging it.

On both aspects, I would appreciate a prompt response from your Honourable Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares exhibits during the August 26, 2010
hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit "J" (a
copy of the Restoring Integrity Statement) was not signed but merely reflected the names of certain
faculty members with the letters (SGD.) beside the names. Thus, the Ethics Committee directed Atty.
Roque to present the signed copy of the said Statement within three days from the August 26
hearing.32
It was upon compliance with this directive that the Ethics Committee was given a copy of the signed
UP Law Faculty Statement that showed on the signature pages the names of the full roster of the UP
Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the Statement was
that only 37 of the 81 faculty members appeared to have signed the same. However, the 37 actual
signatories to the Statement did not include former Supreme Court Associate Justice Vicente V.
Mendoza (Justice Mendoza) as represented in the previous copies of the Statement submitted by
Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed
the Statement although his name was not included among the signatories in the previous copies
submitted to the Court. Thus, the total number of ostensible signatories to the Statement remained
at 37.
The Ethics Committee referred this matter to the Court en banc since the same Statement, having
been formally submitted by Dean Leonen on August 11, 2010, was already under consideration by
the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following observations
regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators opinion on the allegations of
plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact,
but a truth. In particular, they expressed dissatisfaction over Justice Del Castillos explanation on
how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to
those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The
opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had
suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as
areprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the
resolution of the said case, its dismissal on the basis of "polluted sources," the Courts alleged

indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of
concern of the members of the Court for even the most basic values of decency and respect.34 x x x.
(Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic
society, there is also a general consensus that healthy criticism only goes so far. Many types of
criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These
potentially devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an
orderly manner, free from outside interference obstructive of its functions and tending to embarrass
the administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less than objective
comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the
Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if the
case on the comfort womens claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the said decision. This
runs contrary to their obligation as law professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, to which they owe fidelity according to the oath they have
taken as attorneys, and not to promote distrust in the administration of justice.35 x x x. (Citations
omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin,
Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B.
Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G.
De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur
P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie
O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza,
Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B.
Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D.
Lucenario to show cause, within ten (10) days from receipt of the copy of the Resolution, why they
should not be disciplined as members of the Bar for violation of Canons 1, 36 11 and 13 and Rules
1.02 and 11.05 of the Code of Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why he should not be
disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting
through his letter dated August 10, 2010, during the pendency of G.R. No. 162230 and of the
investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy
which is not a true and faithful reproduction of the UP Law Faculty Statement. 38
In the same Resolution, the present controversy was docketed as a regular administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October 19, 2010 Show
Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court, respondents filed the
following pleadings:

(1) Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents,
excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge of violation
of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. JuanBautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in relation to
the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to the
charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common
compliance which was signed by their respective counsels (the Common Compliance). In the
"Preface" of said Common Compliance, respondents stressed that "[they] issued the Restoring
Integrity Statement in the discharge of the solemn duties and trust reposed upon them as teachers
in the profession of law, and as members of the Bar to speak out on a matter of public concern and
one that is of vital interest to them."39 They likewise alleged that "they acted with the purest of
intentions" and pointed out that "none of them was involved either as party or counsel" 40 in the
Vinuya case. Further, respondents "note with concern" that the Show Cause Resolutions findings
and conclusions were "a prejudgment that respondents indeed are in contempt, have breached
their obligations as law professors and officers of the Court, and have violated Canons [1], 11 and
13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility." 41
By way of explanation, the respondents emphasized the following points:
(a) Respondents alleged noble intentions
In response to the charges of failure to observe due respect to legal processes 42 and the
courts43 and of tending to influence, or giving the appearance of influencing the Court 44 in the
issuance of their Statement, respondents assert that their intention was not to malign the
Court but rather to defend its integrity and credibility and to ensure continued confidence in
the legal system. Their noble motive was purportedly evidenced by the portion of their
Statement "focusing on constructive action."45 Respondents call in the Statement for the
Court "to provide clear and concise guidance to the Bench and Bar to ensure only the
highest quality of legal research and writing in adjudication," was reputedly "in keeping with
strictures enjoining lawyers to participate in the development of the legal system by initiating
or supporting efforts in law reform and in the improvement of the administration of justice"
(under Canon 4 of the Code of Professional Responsibility) and to "promote respect for the
law and legal processes" (under Canon 1, id.).46 Furthermore, as academics, they allegedly
have a "special interest and duty to vigilantly guard against plagiarism and misrepresentation
because these unwelcome occurrences have a profound impact in the academe, especially
in our law schools."47
Respondents further "[called] on this Court not to misconstrue the Restoring Integrity
Statement as an institutional attack x x x on the basis of its first and ninth

paragraphs."48 They further clarified that at the time the Statement was allegedly drafted and
agreed upon, it appeared to them the Court "was not going to take any action on the grave
and startling allegations of plagiarism and misrepresentation."49 According to respondents,
the bases for their belief were (i) the news article published on July 21, 2010 in the Philippine
Daily Inquirer wherein Court Administrator Jose Midas P. Marquez was reported to have said
that Chief Justice Corona would not order an inquiry into the matter; 50 and (ii) the July 22,
2010 letter of Justice Del Castillo which they claimed "did nothing but to downplay the gravity
of the plagiarism and misrepresentation charges."51 Respondents claimed that it was their
perception of the Courts indifference to the dangers posed by the plagiarism allegations
against Justice Del Castillo that impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents position that Justice Del Castillo committed plagiarism
and should be held accountable in accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of the merits of
respondents charge of plagiarism against Justice Del Castillo. Relying on University of the
Philippines Board of Regents v. Court of Appeals52 and foreign materials and jurisprudence,
respondents essentially argue that their position regarding the plagiarism charge against
Justice Del Castillo is the correct view and that they are therefore justified in issuing their
Restoring Integrity Statement. Attachments to the Common Compliance included, among
others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D., 53 sent to Chief
Justice Corona through Justice Sereno, alleging that the Vinuya decision likewise lifted
without proper attribution the text from a legal article by Mariana Salazar Albornoz that
appeared in the Anuario Mexicano De Derecho Internacional and from an International Court
of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled "Sexual
Orientation, Gender Identity and International Human Rights Law" by Michael OFlaherty and
John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said
article without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v.
Commission on Elections.54
(c) Respondents belief that they are being "singled out" by the Court when others have
likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism and
misrepresentation allegations are legitimate public issues."55 They identified various
published reports and opinions, in agreement with and in opposition to the stance of
respondents, on the issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero; 56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July
24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010; 58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star
on July 30, 2010;59
(v) Column of Former Intellectual Property Office Director General Adrian Cristobal,
Jr. published in the Business Mirror on August 5, 2010; 60

(vi) Column of Former Chief Justice Artemio Panganiban published in the Philippine
Daily Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis Pangilinans call for the resignation of
Justice Del Castillo published in the Daily Tribune and the Manila Standard Today on
July 31, 2010;62
(viii) News reports regarding the statement of Dean Cesar Villanueva of the Ateneo
de Manila University School of Law on the calls for the resignation of Justice Del
Castillo published in The Manila Bulletin, the Philippine Star and the Business Mirror
on August 11, 2010;63
(ix) News report on expressions of support for Justice Del Castillo from a former
dean of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional
Association, the Judges Association of Bulacan and the Integrated Bar of the
Philippines Bulacan Chapter published in the Philippine Star on August 16,
2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan University College of Law published
in the Philippine Daily Inquirer on August 10, 2010.65
In view of the foregoing, respondents alleged that this Court has singled them out for
sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they
may have violated specific canons of the Code of Professional Responsibility is unfair and
without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their
position that in issuing their Statement, "they should be seen as not only to be performing
their duties as members of the Bar, officers of the court, and teachers of law, but also as
citizens of a democracy who are constitutionally protected in the exercise of free
speech."66 In support of this contention, they cited United States v. Bustos,67 In re: Atty.
Vicente Raul Almacen, 68 and In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections. 69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was
also issued in the exercise of their academic freedom as teachers in an institution of higher learning.
They relied on Section 5 of the University of the Philippines Charter of 2008 which provided that
"[t]he national university has the right and responsibility to exercise academic freedom." They
likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School of Theology70 which
they claimed recognized the extent and breadth of such freedom as to encourage a free and healthy
discussion and communication of a faculty members field of study without fear of reprisal. It is
respondents view that had they remained silent on the plagiarism issue in the Vinuya decision they
would have "compromised [their] integrity and credibility as teachers; [their silence] would have
created a culture and generation of students, professionals, even lawyers, who would lack the
competence and discipline for research and pleading; or, worse, [that] their silence would have
communicated to the public that plagiarism and misrepresentation are inconsequential matters and
that intellectual integrity has no bearing or relevance to ones conduct." 71

In closing, respondents Common Compliance exhorted this Court to consider the following portion of
the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez, 72 to wit:
Respect for the courts can better be obtained by following a calm and impartial course from the
bench than by an attempt to compel respect for the judiciary by chastising a lawyer for a too
vigorous or injudicious exposition of his side of a case. The Philippines needs lawyers of
independent thought and courageous bearing, jealous of the interests of their clients and unafraid of
any court, high or low, and the courts will do well tolerantly to overlook occasional intemperate
language soon to be regretted by the lawyer which affects in no way the outcome of a case. 73
On the matter of the reliefs to which respondents believe they are entitled, the Common Compliance
stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of the Bar and
officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the Show Cause
Resolution, including its conclusions that respondents have: [a] breached their
"obligation as law professors and officers of the Court to be the first to uphold the
dignity and authority of this Court, and not to promote distrust in the administration
of justice;" and [b] committed "violations of Canons 10, 11, and 13 and Rules 1.02
and 11.05 of the Code of Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing prayer, respondents
respectfully pray, in the alternative, and in assertion of their due process rights, that before
final judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute and/or address the
findings and conclusions of fact in the Show Cause Resolution (including especially
the finding and conclusion of a lack of malicious intent), and in that connection, that
appropriate procedures and schedules for hearing be adopted and defined that will
allow them the full and fair opportunity to require the production of and to present
testimonial, documentary, and object evidence bearing on the plagiarism and
misrepresentation issues in Vinuya v. Executive Secretary (G.R. No. 162230, April
28, 2010) and In the Matter of the Charges of Plagiarism, etc. Against Associate
Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
3. respondents be given fair and full access to the transcripts, records, drafts, reports
and submissions in or relating to, and accorded the opportunity to cross-examine the
witnesses who were or could have been called in In The Matter of the Charges of
Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista

Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof.
Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein she
adopted the allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the
findings and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity
Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court,
such may be punished only after charge and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with the best
intentions to protect the Supreme Court by asking one member to resign." 76 For her part, Prof. JuanBautista intimated that her deep disappointment and sadness for the plight of the Malaya Lolas were
what motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence 77 which in her view
highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning
such that schools have the freedom to determine for themselves who may teach, what may be
taught, how lessons shall be taught and who may be admitted to study and that courts have no
authority to interfere in the schools exercise of discretion in these matters in the absence of grave
abuse of discretion. She claims the Court has encroached on the academic freedom of the
University of the Philippines and other universities on their right to determine how lessons shall be
taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents
constitutional right to freedom of expression that can only be curtailed when there is grave and
imminent danger to public safety, public morale, public health or other legitimate public interest. 78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by
registered mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the
circumstances surrounding his signing of the Statement. He alleged that the Vinuya decision was a
topic of conversation among the UP Law faculty early in the first semester (of academic year 201011) because it reportedly contained citations not properly attributed to the sources; that he was
shown a copy of the Statement by a clerk of the Office of the Dean on his way to his class; and that,
agreeing in principle with the main theme advanced by the Statement, he signed the same in utmost
good faith.79
In response to the directive from this Court to explain why he should not be disciplined as a member
of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a lawyer has
the right, like all citizens in a democratic society, to comment on acts of public officers. He invited the
attention of the Court to the following authorities: (a) In re: Vicente Sotto; 80 (b) In re: Atty. Vicente
Raul Almacen;81 and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.82 He claims
that he "never had any intention to unduly influence, nor entertained any illusion that he could or
should influence, [the Court] in its disposition of the Vinuya case"83 and that "attacking the integrity of
[the Court] was the farthest thing on respondents mind when he signed the Statement." 84 Unlike his
colleagues, who wish to impress upon this Court the purported homogeneity of the views on what
constitutes plagiarism, Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010, some espoused the
view that willful and deliberate intent to commit plagiarism is an essential element of the same.
Others, like respondent, were of the opinion that plagiarism is committed regardless of the intent of

the perpetrator, the way it has always been viewed in the academe. This uncertainty made the issue
a fair topic for academic discussion in the College. Now, this Honorable Court has ruled that
plagiarism presupposes deliberate intent to steal anothers work and to pass it off as ones
own.85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have been
remiss in correctly assessing the effects of such language [in the Statement] and could have been
more careful."86 He ends his discussion with a respectful submission that with his explanation, he has
faithfully complied with the Show Cause Resolution and that the Court will rule that he had not in any
manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of Canon 10 in relation to
his submission of a "dummy" of the UP Law Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law
Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the UP College of Law
in its signing pages, and the actual signatures of the thirty-seven (37) faculty members
subject of the Show Cause Resolution. A copy was filed with the Honorable Court by Roque
and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature, but which
reflects as signatories the names of thirty-seven (37) members of the faculty with the
notation "(SGD.)". A copy of Restoring Integrity II was publicly and physically posted in the
UP College of Law on 10 August 2010. Another copy of Restoring Integrity II was also
officially received by the Honorable Court from the Dean of the UP College of Law on 11
August 2010, almost three weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which presently
serves as the official file copy of the Deans Office in the UP College of Law that may be
signed by other faculty members who still wish to. It bears the actual signatures of the thirtyseven original signatories to Restoring Integrity I above their printed names and the notation
"(SGD.") and, in addition, the actual signatures of eight (8) other members of the faculty
above their handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant since
what Dean Leonen has been directed to explain are the discrepancies in the signature pages of
these two documents. Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean Leonen
alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in the faculty
on a draft statement, Dean Leonen instructed his staff to print the draft and circulate it among
the faculty members so that those who wished to may sign. For this purpose, the staff
encoded the law faculty roster to serve as the printed drafts signing pages. Thus did the first
printed draft of the Restoring Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was
unaware that a Motion for Reconsideration of the Honorable Courts Decision in Vinuya vs.

Executive Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that the
Honorable Court was in the process of convening its Committee on Ethics and Ethical
Standards in A.M. No. 10-7-17-SC.
2.4. Dean Leonens staff then circulated Restoring Integrity I among the members of the
faculty. Some faculty members visited the Deans Office to sign the document or had it
brought to their classrooms in the College of Law, or to their offices or residences. Still other
faculty members who, for one reason or another, were unable to sign Restoring Integrity I at
that time, nevertheless conveyed to Dean Leonen their assurances that they would sign as
soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I had been
circulated long enough, Dean Leonen instructed his staff to reproduce the statement in a
style and manner appropriate for posting in the College of Law. Following his own
established practice in relation to significant public issuances, he directed them to reformat
the signing pages so that only the names of those who signed the first printed draft would
appear, together with the corresponding "(SGD.)" note following each name. Restoring
Integrity II thus came into being.88
According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of nonsignatories in the final draft of significant public issuances, is meant not so much for aesthetic
considerations as to secure the integrity of such documents."89 He likewise claimed that "[p]osting
statements with blanks would be an open invitation to vandals and pranksters." 90
With respect to the inclusion of Justice Mendozas name as among the signatories in Restoring
Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake to a
miscommunication involving his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with the reformatted signing
pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza among the
"(SGD.)" signatories. As Justice Mendoza was not among those who had physically signed
Restoring Integrity I when it was previously circulated, Dean Leonen called the attention of
his staff to the inclusion of the Justices name among the "(SGD.)" signatories in Restoring
Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken to Justice
Mendoza over the phone on Friday, 06 August 2010. According to her, Justice Mendoza had
authorized the dean to sign the Restoring Integrity Statement for him as he agreed
fundamentally with its contents. Also according to her, Justice Mendoza was unable at that
time to sign the Restoring Integrity Statement himself as he was leaving for the United States
the following week. It would later turn out that this account was not entirely
accurate.91 (Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer, however, and so
placed full reliance on her account"92 as "[t]here were indeed other faculty members who had also
authorized the Dean to indicate that they were signatories, even though they were at that time
unable to affix their signatures physically to the document." 93
However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the
circumstances surrounding their effort to secure Justice Mendozas signature. It would turn out that
this was what actually transpired:

2.22.1. On Friday, 06 August 2010, when the deans staff talked to Justice Mendoza on the
phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity Statement
as he fundamentally agreed with its contents. However, Justice Mendoza did not exactly say
that he authorized the dean to sign the Restoring Integrity Statement. Rather, he inquired if
he could authorize the dean to sign it for him as he was about to leave for the United States.
The deans staff informed him that they would, at any rate, still try to bring the Restoring
Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to sign the
Restoring Integrity Statement before he left for the U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza when he went to
the College to teach on 24 September 2010, a day after his arrival from the U.S. This time,
Justice Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the call he received from
Justice Mendoza in late September. Indeed, Justice Mendoza confirmed that by the time the hard
copy of the Restoring Integrity Statement was brought to him shortly after his arrival from the U.S.,
he declined to sign it because it had already become controversial. At that time, he predicted that the
Court would take some form of action against the faculty. By then, and under those circumstances,
he wanted to show due deference to the Honorable Court, being a former Associate Justice and not
wishing to unduly aggravate the situation by signing the Statement.95(Emphases supplied.)
With respect to the omission of Atty. Armovits name in the signature page of Restoring Integrity II
when he was one of the signatories of Restoring Integrity I and the erroneous description in Dean
Leonens August 10, 2010 letter that the version of the Statement submitted to the Court was signed
by 38 members of the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was circulated to him.
However, his name was inadvertently left out by Dean Leonens staff in the reformatting of the
signing pages in Restoring Integrity II. The dean assumed that his name was still included in the
reformatted signing pages, and so mentioned in his cover note to Chief Justice Corona that 38
members of the law faculty signed (the original 37 plus Justice Mendoza.) 96
Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement
that was not a true and faithful reproduction of the same. He emphasized that the main body of the
Statement was unchanged in all its three versions and only the signature pages were not the same.
This purportedly is merely "reflective of [the Statements] essential nature as a live public manifesto
meant to continuously draw adherents to its message, its signatory portion is necessarily evolving
and dynamic x x x many other printings of [the Statement] may be made in the future, each one
reflecting the same text but with more and more signatories."97 Adverting to criminal law by analogy,
Dean Leonen claims that "this is not an instance where it has been made to appear in a document
that a person has participated in an act when the latter did not in fact so participate" 98 for he "did not
misrepresent which members of the faculty of the UP College of Law had agreed with the Restoring
Integrity Statement proper and/or had expressed their desire to be signatories thereto." 99
In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or Rules
10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the Statement
or the identities of the UP Law faculty members who agreed with, or expressed their desire to be
signatories to, the Statement. He also asserts that he did not commit any violation of Rule 10.03 as

he "coursed [the Statement] through the appropriate channels by transmitting the same to Honorable
Chief Justice Corona for the latters information and proper disposition with the hope that its points
would be duly considered by the Honorable Court en banc."100 Citing Rudecon Management
Corporation v. Camacho,101 Dean Leonen posits that the required quantum of proof has not been met
in this case and that no dubious character or motivation for the act complained of existed to warrant
an administrative sanction for violation of the standard of honesty provided for by the Code of
Professional Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common
Compliance, including the prayers for a hearing and for access to the records, evidence and
witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical
investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of the
Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first
taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same
capacity in 2010. He further alleges that "[h]e subscribes to the principle, espoused by this Court and
the Supreme Court of the United States, that [d]ebate on public issues should be uninhibited,
robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials."103 In signing the Statement, he believes that "the
right to speak means the right to speak effectively."104 Citing the dissenting opinions in Manila Public
School Teachers Association v. Laguio, Jr.,105 Prof. Lynch argued that "[f]or speech to be effective, it
must be forceful enough to make the intended recipients listen" 106 and "[t]he quality of education
would deteriorate in an atmosphere of repression, when the very teachers who are supposed to
provide an example of courage and self-assertiveness to their pupils can speak only in timorous
whispers."107 Relying on the doctrine in In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections, 108 Prof. Lynch believed
that the Statement did not pose any danger, clear or present, of any substantive evil so as to remove
it from the protective mantle of the Bill of Rights (i.e., referring to the constitutional guarantee on free
speech).109 He also stated that he "has read the Compliance of the other respondents to the Show
Cause Resolution" and that "he signed the Restoring Integrity Statement for the same reasons they
did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of respondents, the material
issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of expression?
2.) Does the Show Cause Resolution violate respondents academic freedom as law
professors?
3.) Do the submissions of respondents satisfactorily explain why they should not be
disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of
the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not
be disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?

5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in
relation to such hearing, are respondents entitled to require the production or presentation of
evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R.
No. 162230) and the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to
have access to the records and transcripts of, and the witnesses and evidence presented, or
could have been presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of expression.
It is respondents collective claim that the Court, with the issuance of the Show Cause Resolution,
has interfered with respondents constitutionally mandated right to free speech and expression. It
appears that the underlying assumption behind respondents assertion is the misconception that this
Court is denying them the right to criticize the Courts decisions and actions, and that this Court
seeks to "silence" respondent law professors dissenting view on what they characterize as a
"legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was neither
the fact that respondents had criticized a decision of the Court nor that they had charged one of its
members of plagiarism that motivated the said Resolution. It was the manner of the criticism and the
contumacious language by which respondents, who are not parties nor counsels in the Vinuya case,
have expressed their opinion in favor of the petitioners in the said pending case for the "proper
disposition" and consideration of the Court that gave rise to said Resolution. The Show Cause
Resolution painstakingly enumerated the statements that the Court considered excessive and
uncalled for under the circumstances surrounding the issuance, publication, and later submission to
this Court of the UP Law facultys Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del Castillo
was guilty of plagiarism but rather their expression of that belief as "not only as an established fact,
but a truth"111 when it was "[o]f public knowledge [that there was] an ongoing investigation precisely
to determine the truth of such allegations."112 It was also pointed out in the Show Cause Resolution
that there was a pending motion for reconsideration of the Vinuya decision. 113 The Show Cause
Resolution made no objections to the portions of the Restoring Integrity Statement that respondents
claimed to be "constructive" but only asked respondents to explain those portions of the said
Statement that by no stretch of the imagination could be considered as fair or constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The
opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had
suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as
areprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the
resolution of the said case, its dismissal on the basis of "polluted sources," the Courts alleged
indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of
concern of the members of the Court for even the most basic values of decency and respect.114 x x x.
(Underscoring ours.)

To be sure, the Show Cause Resolution itself recognized respondents freedom of expression when
it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic
society, there is also a general consensus that healthy criticism only goes so far. Many types of
criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These
potentially devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an
orderly manner, free from outside interference obstructive of its functions and tending to embarrass
the administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less than objective
comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the
Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if the
case on the comfort womens claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the said decision. This
runs contrary to their obligation as law professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, to which they owe fidelity according to the oath they have
taken as attorneys, and not to promote distrust in the administration of justice.115 x x x. (Citations
omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents submissions, this Court has held
that the right to criticize the courts and judicial officers must be balanced against the equally
primordial concern that the independence of the Judiciary be protected from due influence or
interference. In cases where the critics are not only citizens but members of the Bar, jurisprudence
has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding
the courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits of fair
comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty. Vicente J. Francisco both
guilty of contempt and liable administratively for the following paragraph in his second motion for
reconsideration:
We should like frankly and respectfully to make it of record that the resolution of this court, denying
our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the
petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality
of Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may
be corrected by the very court which has committed it, because we should not want that some
citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to
denounce, as he has a right to do, the judicial outrage of which the herein petitioner has been the
victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of
each and every member thereof in the eyes of the public. But, at the same time we wish to state
sincerely that erroneous decisions like these, which the affected party and his thousands of voters
will necessarily consider unjust, increase the proselytes of 'sakdalism' and make the public lose
confidence in the administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor necessary and further
held that:
[I]n order to call the attention of the court in a special way to the essential points relied upon in his
argument and to emphasize the force thereof, the many reasons stated in his said motion were
sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is

highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco
has done, because both means are annoying and good practice can never sanction them by reason
of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment,
particularly in judicial matters, in the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more
or less veiled threat to the court because it is insinuated therein, after the author shows the course
which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the
press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has
been the victim; and because he states in a threatening manner with the intention of predisposing
the mind of the reader against the court, thus creating an atmosphere of prejudices against it in
order to make it odious in the public eye, that decisions of the nature of that referred to in his motion
promote distrust in the administration of justice and increase the proselytes of sakdalism, a
movement with seditious and revolutionary tendencies the activities of which, as is of public
knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of
the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J.
Francisco, because he presumes that the court is so devoid of the sense of justice that, if he did not
resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with
good reasons, that it has acted erroneously.118 (Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote from
the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading
filed by a counsel in a case, unlike the respondents here, who are neither parties nor counsels in
the Vinuya case and therefore, do not have any standing at all to interfere in the Vinuya case.
Instead of supporting respondents theory, Salcedo is authority for the following principle:
As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is
in duty bound to uphold its dignity and authority and to defend its integrity, not only because it has
conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being
what he now is: a priest of justice(In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in
so doing, he neither creates nor promotes distrust in the administration of justice, and prevents
anybody from harboring and encouraging discontent which, in many cases, is the source of disorder,
thus undermining the foundation upon which rests that bulwark called judicial power to which those
who are aggrieved turn for protection and relief.119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his
pleading, by accusing the Court of "erroneous ruling." Here, the respondents Statement goes way
beyond merely ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to their position. In re: Atty.
Vicente Raul Almacen,120 cited in the Common Compliance and the Vasquez Compliance, was an
instance where the Courtindefinitely suspended a member of the Bar for filing and releasing to the
press a "Petition to Surrender Lawyers Certificate of Title" in protest of what he claimed was a great
injustice to his client committed by the Supreme Court. In the decision, the petition was described,
thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our
pleas for justice, who ignore without reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he continues, who was deeply aggrieved by
this Court's "unjust judgment," has become "one of the sacrificial victims before the altar of
hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules the
members of this Court, saying "that justice as administered by the present members of the Supreme

Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his client "in the
people's forum," so that "the people may know of the silent injustices committed by this Court," and
that "whatever mistakes, wrongs and injustices that were committed must never be repeated." He
ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned
attorney and counsellor-at-law IN TRUST with reservation that at any time in the future and in the
event we regain our faith and confidence, we may retrieve our title to assume the practice of the
noblest profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle that a
lawyer, just like any citizen, has the right to criticize and comment upon actuations of public officers,
including judicial authority. However, the real doctrine in Almacen is that such criticism of the courts,
whether done in court or outside of it, must conform to standards of fairness and propriety. This case
engaged in an even more extensive discussion of the legal authorities sustaining this view. To quote
from that decision:
1awphi1

But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over
the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and
abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is
a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to
disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which are not mere flux
and ferment. His investiture into the legal profession places upon his shoulders no burden more
basic, more exacting and more imperative than that of respectful behavior toward the courts. He
vows solemnly to conduct himself "with all good fidelity x x x to the courts;" and the Rules of Court
constantly remind him "to observe and maintain the respect due to courts of justice and judicial
officers." The first canon of legal ethics enjoins him "to maintain towards the courts a respectful
attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of
its supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by express declaration take
upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution
and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This
obligation is not discharged by merely observing the rules of courteous demeanor in open court, but
includes abstaining out of court from all insulting language and offensive conduct toward judges
personally for their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the orderly
administration of justice. Hence, in the assertion of their clients' rights, lawyers even those gifted
with superior intellect are enjoined to rein up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it
may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline
and self-respect are as necessary to the orderly administration of justice as they are to the
effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal
appointed to decide, and the bar should at all times be the foremost in rendering respectful
submission." (In Re Scouten, 40 Atl. 481)

xxxx
In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one
time and a mere citizen at another. Thus, statements made by an attorney in private conversations
or communications or in the course of a political campaign, if couched in insulting language as to
bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary
action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance, observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause, respecting the same, has
always been considered as misbehavior, tending to obstruct the administration of justice, and
subjects such persons to contempt proceedings. Parties have a constitutional right to have their
causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor.
Every citizen has a profound personal interest in the enforcement of the fundamental right to have
justice administered by the courts, under the protection and forms of law, free from outside coercion
or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the
decision of the court in a pending case made in good faith may be tolerated; because if well founded
it may enlighten the court and contribute to the correction of an error if committed; but if it is not well
taken and obviously erroneous, it should, in no way, influence the court in reversing or modifying its
decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing deliberately "so many
blunders and injustices," that is to say, that it has been deciding in favor of one party knowing that
the law and justice is on the part of the adverse party and not on the one in whose favor the decision
was rendered, in many cases decided during the last years, would tend necessarily to undermine the
confidence of the people in the honesty and integrity of the members of this Court, and consequently
to lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines
is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for
their grievances or protection of their rights when these are trampled upon, and if the people lose
their confidence in the honesty and integrity of the members of this Court and believe that they
cannot expect justice therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts
Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such attorney, and not to promote
distrust in the administration of justice. Respect to the courts guarantees the stability of other
institutions, which without such guaranty would be resting on a very shaky foundation. 124 (Emphases
and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can be easily gleaned
even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer, through the imposition of a
fine, for making malicious and unfounded criticisms of a judge in the guise of an administrative
complaint and held, thus:

As an officer of the court and its indispensable partner in the sacred task of administering justice,
graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts
and to show respect to its officers. This does not mean, however, that a lawyer cannot criticize a
judge. As we stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court, he cannot criticize
the courts. That is his right as a citizen, and it is even his duty as an officer of the court to avail of
such right. Thus, in In Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but
also to consider it his duty to avail of such right. No law may abridge this right. Nor is he
"professionally answerable to a scrutiny into the official conduct of the judges, which would not
expose him to legal animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the
walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and
abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is
a gross violation of the duty of respect to courts. It is such a misconduct, that subjects a lawyer to
disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech and of
expression in the Bill of Rights of the Constitution, must be exercised responsibly, for every right
carries with it a corresponding obligation.Freedom is not freedom from responsibility, but freedom
with responsibility. x x x.
xxxx
Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in
courts, creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily to
undermine the confidence of people in the integrity of the members of this Court and to degrade the
administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive
language (In re: Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language
(Yangson vs. Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless,
and malicious statements in pleadings or in a letter addressed to the judge (Baja vs. Macandog, 158
SCRA [1988], citing the resolution of 19 January 1988 in Phil. Public Schools Teachers Association
vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of
disparaging, intemperate, and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court,
177 SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint which is clearly
unfounded and impelled by ulterior motive will not excuse the lawyer responsible therefor under his
duty of fidelity to his client. x x x.126 (Emphases and underscoring supplied.)

In Saberon v. Larong,127 where this Court found respondent lawyer guilty of simple misconduct for
using intemperate language in his pleadings and imposed a fine upon him, we had the occasion to
state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his professional
colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive
or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts and to judicial
officers and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or
behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of the bar to use strong
language in pursuit of their duty to advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor and courage, such
enthusiasm does not justify the use of offensive and abusive language. Language abounds
with countless possibilities for one to be emphatic but respectful, convincing but not
derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from all offensive
personalityand to advance no fact prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged. In keeping with the dignity of the legal
profession, a lawyers language even in his pleadings must be dignified. 128
Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the limits of
fair comment and cannot be deemed as protected free speech. Even In the Matter of Petition for
Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections,129 relied upon by respondents in the Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that
press for recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the threat to judicial
independence and the orderly administration of justice that immoderate, reckless and unfair attacks
on judicial decisions and institutions pose. This Court held as much in Zaldivar v. Sandiganbayan
and Gonzales,131 where we indefinitely suspended a lawyer from the practice of law for issuing to
the media statements grossly disrespectful towards the Court in relation to a pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to
deny him that right, least of all this Court. What respondent seems unaware of is that freedom of

speech and of expression, like all constitutional freedoms, is not absolute and that freedom of
expression needs on occasion to be adjusted to and accommodated with the requirements of
equally important public interest. One of these fundamental public interests is the maintenance of the
integrity and orderly functioning of the administration of justice. There is no antinomy between free
expression and the integrity of the system of administering justice. For the protection and
maintenance of freedom of expression itself can be secured only within the context of a functioning
and orderly system of dispensing justice, within the context, in other words, of viable independent
institutions for delivery of justice which are accepted by the general community. x x x. 132 (Emphases
supplied.)
For this reason, the Court cannot uphold the view of some respondents 133 that the Statement
presents no grave or imminent danger to a legitimate public interest.
The Show Cause Resolution does not interfere with respondents academic freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic
freedom and undisputably, they are free to determine what they will teach their students and how
they will teach. We must point out that there is nothing in the Show Cause Resolution that dictates
upon respondents the subject matter they can teach and the manner of their instruction. Moreover, it
is not inconsistent with the principle of academic freedom for this Court to subject lawyers who teach
law to disciplinary action for contumacious conduct and speech, coupled with undue intervention in
favor of a party in a pending case, without observing proper procedure, even if purportedly done in
their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in any previous
case before this Court, is the question of whether lawyers who are also law professors can invoke
academic freedom as a defense in an administrative proceeding for intemperate statements tending
to pressure the Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Courts past treatment of the "free speech" defense in other bar discipline
cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit
ruling in the jurisprudence discussed above is that the constitutional right to freedom of expression of
members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to
the courts and to uphold the publics faith in the legal profession and the justice system. To our mind,
the reason that freedom of expression may be so delimited in the case of lawyers applies with
greater force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad definition in Cayetano
v. Monsod,134 lawyers when they teach law are considered engaged in the practice of law. Unlike
professors in other disciplines and more than lawyers who do not teach law, respondents are bound
by their oath to uphold the ethical standards of the legal profession. Thus, their actions as law
professors must be measured against the same canons of professional responsibility applicable to
acts of members of the Bar as the fact of their being law professors is inextricably entwined with the
fact that they are lawyers.
Even if the Court was willing to accept respondents proposition in the Common Compliance that
their issuance of the Statement was in keeping with their duty to "participate in the development of
the legal system by initiating or supporting efforts in law reform and in the improvement of the
administration of justice" under Canon 4 of the Code of Professional Responsibility, we cannot agree
that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give
due respect to legal processes and the courts, and to avoid conduct that tends to influence the
courts. Members of the Bar cannot be selective regarding which canons to abide by given particular

situations. With more reason that law professors are not allowed this indulgence, since they are
expected to provide their students exemplars of the Code of Professional Responsibility as a whole
and not just their preferred portions thereof.
The Courts rulings on the submissions regarding the charge of violation of Canons 1, 11 and 13.
Having disposed of respondents main arguments of freedom of expression and academic freedom,
the Court considers here the other averments in their submissions.
With respect to good faith, respondents allegations presented two main ideas: (a) the validity of their
position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive to
spur this Court to take the correct action on said issue.
The Court has already clarified that it is not the expression of respondents staunch belief that
Justice Del Castillo has committed a misconduct that the majority of this Court has found so
unbecoming in the Show Cause Resolution. No matter how firm a lawyers conviction in the
righteousness of his cause there is simply no excuse for denigrating the courts and engaging in
public behavior that tends to put the courts and the legal profession into disrepute. This doctrine,
which we have repeatedly upheld in such cases as Salcedo, In re Almacen and Saberong, should be
applied in this case with more reason, as the respondents, not parties to the Vinuya case,
denounced the Court and urged it to change its decision therein, in a public statement using
contumacious language, which with temerity they subsequently submitted to the Court for "proper
disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas was
one of the objectives of the Statement could be seen in the following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only of Filipino women, but
of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in
times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered
and misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial
function of the Supreme Court as the ultimate dispenser of justice to all those who have been left
without legal or equitable recourse, such as the petitioners therein. 135 (Emphases and underscoring
supplied.)
Whether or not respondents views regarding the plagiarism issue in the Vinuya case had valid basis
was wholly immaterial to their liability for contumacious speech and conduct. These are two separate
matters to be properly threshed out in separate proceedings. The Court considers it highly
inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances
arguing the guilt of Justice Del Castillo. In the Common Compliance, respondents even go so far as
to attach documentary evidence to support the plagiarism charges against Justice Del Castillo in the
present controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of
a motion for reconsideration, was still pending at the time of the filing of respondents submissions in
this administrative case. As respondents themselves admit, they are neither parties nor counsels in
the ethics case against Justice Del Castillo. Notwithstanding their professed overriding interest in
said ethics case, it is not proper procedure for respondents to bring up their plagiarism arguments
here especially when it has no bearing on their own administrative case.

Still on motive, it is also proposed that the choice of language in the Statement was intended for
effective speech; that speech must be "forceful enough to make the intended recipients
listen."136 One wonders what sort of effect respondents were hoping for in branding this Court as,
among others, callous, dishonest and lacking in concern for the basic values of decency and
respect. The Court fails to see how it can ennoble the profession if we allow respondents to send a
signal to their students that the only way to effectively plead their cases and persuade others to their
point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in full in
the narration of background facts to illustrate the sharp contrast between the civil tenor of these
letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are the ones
who would expectedly be affected by any perception of misuse of their works. Notwithstanding that
they are beyond the disciplinary reach of this Court, they still obviously took pains to convey their
objections in a deferential and scholarly manner. It is unfathomable to the Court why respondents
could not do the same. These foreign authors letters underscore the universality of the tenet that
legal professionals must deal with each other in good faith and due respect. The mark of the true
intellectual is one who can express his opinions logically and soberly without resort to exaggerated
rhetoric and unproductive recriminations.
As for the claim that the respondents noble intention is to spur the Court to take "constructive action"
on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement was
primarily meant for this Courts consideration, why was the same published and reported in the
media first before it was submitted to this Court? It is more plausible that the Statement was
prepared for consumption by the general public and designed to capture media attention as part of
the effort to generate interest in the most controversial ground in the Supplemental Motion for
Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents colleague on the UP
Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of fidelity and due respect
to the Court, particularly when respondents knew fully well that the matter of plagiarism in the Vinuya
decision and the merits of the Vinuya decision itself, at the time of the Statements issuance, were
still both sub judice or pending final disposition of the Court. These facts have been widely
publicized. On this point, respondents allege that at the time the Statement was first drafted on July
27, 2010, they did not know of the constitution of the Ethics Committee and they had issued the
Statement under the belief that this Court intended to take no action on the ethics charge against
Justice Del Castillo. Still, there was a significant lapse of time from the drafting and printing of the
Statement on July 27, 2010 and its publication and submission to this Court in early August when the
Ethics Committee had already been convened. If it is true that the respondents outrage was fueled
by their perception of indifference on the part of the Court then, when it became known that the
Court did intend to take action, there was nothing to prevent respondents from recalibrating the
Statement to take this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in the respondents
reliance on various news reports and commentaries in the print media and the internet as proof that
they are being unfairly "singled out." On the contrary, these same annexes to the Common
Compliance show that it is not enough for one to criticize the Court to warrant the institution of
disciplinary137 or contempt138 action. This Court takes into account the nature of the criticism and
weighs the possible repercussions of the same on the Judiciary. When the criticism comes from
persons outside the profession who may not have a full grasp of legal issues or from individuals
whose personal or other interests in making the criticism are obvious, the Court may perhaps
tolerate or ignore them. However, when law professors are the ones who appear to have lost sight of
the boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties,

this Court cannot remain silent for such silence would have a grave implication on legal education in
our country.
With respect to the 35 respondents named in the Common Compliance, considering that this
appears to be the first time these respondents have been involved in disciplinary proceedings of this
sort, the Court is willing to give them the benefit of the doubt that they were for the most part wellintentioned in the issuance of the Statement. However, it is established in jurisprudence that where
the excessive and contumacious language used is plain and undeniable, then good intent can only
be mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court or
to be recreant to the respect thereto but, unfortunately, there are his phrases which need no further
comment. Furthermore, it is a well settled rule in all places where the same conditions and practice
as those in this jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45).
Neither is the fact that the phrases employed are justified by the facts a valid defense:
"Where the matter is abusive or insulting, evidence that the language used was justified by the facts
is not admissible as a defense. Respect for the judicial office should always be observed and
enforced." (In re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention constitutes at most
an extenuation of liability in this case, taking into consideration Attorney Vicente J. Francisco's state
of mind, according to him when he prepared said motion. This court is disposed to make such
concession. However, in order to avoid a recurrence thereof and to prevent others, by following the
bad example, from taking the same course, this court considers it imperative to treat the case of said
attorney with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim of
good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect to the
courts and to refrain from intemperate and offensive language tending to influence the Court on
pending matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance
compared to his colleagues. In our view, he was the only one among the respondents who showed
true candor and sincere deference to the Court. He was able to give a straightforward account of
how he came to sign the Statement. He was candid enough to state that his agreement to the
Statement was in principle and that the reason plagiarism was a "fair topic of discussion" among the
UP Law faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC
was the uncertainty brought about by a division of opinion on whether or not willful or deliberate
intent was an element of plagiarism. He was likewise willing to acknowledge that he may have been
remiss in failing to assess the effect of the language of the Statement and could have used more
care. He did all this without having to retract his position on the plagiarism issue, without demands
for undeserved reliefs (as will be discussed below) and without baseless insinuations of deprivation
of due process or of prejudgment. This is all that this Court expected from respondents, not for them
to sacrifice their principles but only that they recognize that they themselves may have committed
some ethical lapse in this affair. We commend Prof. Vaquez for showing that at least one of the
respondents can grasp the true import of the Show Cause Resolution involving them. For these
reasons, the Court finds Prof. Vasquezs Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of
Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused
from these proceedings. However, he should be reminded that while he is engaged as a professor in
a Philippine law school he should strive to be a model of responsible and professional conduct to his
students even without the threat of sanction from this Court. For even if one is not bound by the

Code of Professional Responsibility for members of the Philippine Bar, civility and respect among
legal professionals of any nationality should be aspired for under universal standards of decency and
fairness.
The Courts ruling on Dean Leonens Compliance regarding the charge of violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be
disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a
"dummy" that was not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and
faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text or
the body, there were no differences between the two. He attempts to downplay the discrepancies in
the signature pages of the two versions of the Statement (i.e., Restoring Integrity I and Restoring
Integrity II) by claiming that it is but expected in "live" public manifestos with dynamic and evolving
pages as more and more signatories add their imprimatur thereto. He likewise stresses that he is not
administratively liable because he did not misrepresent the members of the UP Law faculty who
"had agreed with the Restoring Integrity Statement proper and/or who had expressed their desire to
be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonens implied view that the signatures in the
Statement are not as significant as its contents. Live public manifesto or not, the Statement was
formally submitted to this Court at a specific point in time and it should reflect accurately its
signatories at that point. The value of the Statement as a UP Law Faculty Statement lies precisely in
the identities of the persons who have signed it, since the Statements persuasive authority mainly
depends on the reputation and stature of the persons who have endorsed the same. Indeed, it is
apparent from respondents explanations that their own belief in the "importance" of their positions
as UP law professors prompted them to publicly speak out on the matter of the plagiarism issue in
the Vinuya case.
Further, in our assessment, the true cause of Dean Leonens predicament is the fact that he did not
from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010
and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages. It
would turn out, according to Dean Leonens account, that there were errors in the retyping of the
signature pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the
deans office gave the dean inaccurate information that led him to allow the inclusion of Justice
Mendoza as among the signatories of Restoring Integrity II. Second, an unnamed staff also failed to
type the name of Atty. Armovit when encoding the signature pages of Restoring Integrity II when in
fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a website a signed
document may have to be reformatted and signatures may be indicated by the notation (SGD). This
is not unusual. We are willing to accept that the reformatting of documents meant for posting to
eliminate blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a signed document
for the Courts consideration that did not contain the actual signatures of its authors. In most cases, it
is the original signed document that is transmitted to the Court or at the very least a photocopy of the
actual signed document. Dean Leonen has not offered any explanation why he deviated from this
practice with his submission to the Court of Restoring Integrity II on August 11, 2010. There was
nothing to prevent the dean from submitting Restoring Integrity I to this Court even with its blanks
and unsigned portions. Dean Leonen cannot claim fears of vandalism with respect to court

submissions for court employees are accountable for the care of documents and records that may
come into their custody. Yet, Dean Leonen deliberately chose to submit to this Court the facsimile
that did not contain the actual signatures and his silence on the reason therefor is in itself a display
of lack of candor.
Still, a careful reading of Dean Leonens explanations yield the answer. In the course of his
explanation of his willingness to accept his administrative officers claim that Justice Mendoza
agreed to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had
likewise only authorized him to indicate them as signatories and had not in fact signed the
Statement. Thus, at around the time Restoring Integrity II was printed, posted and submitted to this
Court, at least one purported signatory thereto had not actually signed the same. Contrary to Dean
Leonens proposition, that is precisely tantamount to making it appear to this Court that a person or
persons participated in an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent
standards of intellectual honesty, could proffer the explanation that there was no misrepresentation
when he allowed at least one person to be indicated as having actually signed the Statement when
all he had was a verbal communication of an intent to sign. In the case of Justice Mendoza, what he
had was only hearsay information that the former intended to sign the Statement. If Dean Leonen
was truly determined to observe candor and truthfulness in his dealings with the Court, we see no
reason why he could not have waited until all the professors who indicated their desire to sign the
Statement had in fact signed before transmitting the Statement to the Court as a duly signed
document. If it was truly impossible to secure some signatures, such as that of Justice Mendoza who
had to leave for abroad, then Dean Leonen should have just resigned himself to the signatures that
he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual signatures
before submission of the Statement to this Court. As respondents all asserted, they were neither
parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo. The
Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it
was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonens Compliance unsatisfactory. However, the Court is
willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit
of his objectives. In due consideration of Dean Leonens professed good intentions, the Court deems
it sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings
with the Court as required under Canon 10.
Respondents requests for a hearing, for production/presentation of evidence bearing on the
plagiarism and misrepresentation issues in G.R. No. 162230 and A.M. No. 10-7-17-SC, and for
access to the records of A.M. No. 10-7-17-SC are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative reliefs should the
Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for
hearing and for that purpose, they be allowed to require the production or presentation of witnesses
and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No.
162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have
access to the records of, and evidence that were presented or may be presented in the ethics case
against Justice Del Castillo. The prayer for a hearing and for access to the records of A.M. No. 10-717-SC was substantially echoed in Dean Leonens separate Compliance. In Prof. Juan-Bautistas
Compliance, she similarly expressed the sentiment that "[i]f the Restoring Integrity Statement can be
considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be

punished only after charge and hearing."141 It is this group of respondents premise that these reliefs
are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs largely
from its characterization as a special civil action for indirect contempt in the Dissenting Opinion of
Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the
majoritys purported failure to follow the procedure in Rule 71 of the Rules of Court as her main
ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect contempt proceeding and
Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered in the Show
Cause Resolution this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings
initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.In proceedings initiated motu proprio by the Supreme Court
or in other proceedings when the interest of justice so requires, the Supreme Court may refer the
case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a
lower court, in which case the investigation shall proceed in the same manner provided in sections 6
to 11 hereof, save that the review of the report of investigation shall be conducted directly by the
Supreme Court. (Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the
specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if the
Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A
will be followed.
As respondents are fully aware, in general, administrative proceedings do not require a trial type
hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the
action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be
heard, hence, a party cannot feign denial of due process where he had been afforded the
opportunity to present his side. A formal or trial type hearing is not at all times and in all instances
essential to due process, the requirements of which are satisfied where the parties are afforded fair
and reasonable opportunity to explain their side of the controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio 143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they
do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct
of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu
proprio. Public interest is its primary objective, and the real question for determination is whether or
not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations
as an officer of the Court with the end in view of preserving the purity of the legal profession and the

proper and honest administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion
to speak of a complainant or a prosecutor.144 (Emphases supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court Br. 81, Romblon On the
Prohibition from Engaging in the Private Practice of Law,145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or resort to any formal
investigation where the facts on record sufficiently provided the basis for the determination of their
administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further investigation
after considering his actions based on records showing his unethical misconduct; the misconduct not
only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public
interest and welfare. In this regard, the Court took judicial notice of several cases handled by the
errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of
the proper judicial fees for the astronomical sums they claimed in their cases. The Court held that
those cases sufficiently provided the basis for the determination of respondents' administrative
liability, without need for further inquiry into the matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary hearing is
required before the respondent may be disciplined for professional misconduct already established
by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against and/or formal investigation
of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority,
as long as the errant lawyer or judge has been given the opportunity to be heard. As we stated
earlier, Atty. Buffe has been afforded the opportunity to be heard on the present matter through her
letter-query and Manifestation filed before this Court.146 (Emphases supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a hearing and their
reservation of a right they do not have has no effect on these proceedings. Neither have they shown
in their pleadings any justification for this Court to call for a hearing in this instance. They have not
specifically stated what relevant evidence, documentary or testimonial, they intend to present in their
defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and witnesses bearing on the
plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the
assumption that the findings of this Court which were the bases of the Show Cause Resolution were
made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that
case. This is the primary reason for their request for access to the records and evidence presented
in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only incident in A.M. No.
10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual signed
copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there. Apart
from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case
against Justice Del Castillo, is a separate and independent matter from this case.

To find the bases of the statements of the Court in the Show Cause Resolution that the respondents
issued a Statement with language that the Court deems objectionable during the pendency of the
Vinuya case and the ethics case against Justice Del Castillo, respondents need to go no further than
the four corners of the Statement itself, its various versions, news reports/columns (many of which
respondents themselves supplied to this Court in their Common Compliance) and internet sources
that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the language of the Statement
and the circumstances surrounding the drafting, printing, signing, dissemination, etc., of its various
versions, the Court does not see how any witness or evidence in the ethics case of Justice Del
Castillo could possibly shed light on these facts. To be sure, these facts are within the knowledge of
respondents and if there is any evidence on these matters the same would be in their possession.
We find it significant that in Dean Leonens Compliance he narrated how as early as September
2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October 12,
2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice
Vicente V. Mendoza, after being shown a copy of the Statement upon his return from abroad,
predicted that the Court would take some form of action on the Statement. By simply reading a hard
copy of the Statement, a reasonable person, even one who "fundamentally agreed" with the
Statements principles, could foresee the possibility of court action on the same on an implicit
recognition that the Statement, as worded, is not a matter this Court should simply let pass. This
belies respondents claim that it is necessary for them to refer to any record or evidence in A.M. No.
10-7-17-SC in order to divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their respective compliances
or chosen not to make a full defense at this time, because they were counting on being granted a
hearing, that is respondents own look-out. Indeed, law professors of their stature are supposed to
be aware of the above jurisprudential doctrines regarding the non-necessity of a hearing in
disciplinary cases. They should bear the consequence of the risk they have taken.
Thus, respondents requests for a hearing and for access to the records of, and evidence presented
in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have monolithic views on
any subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously
propound their points of view they are bound by certain rules of conduct for the legal profession. This
Court is certainly not claiming that it should be shielded from criticism. All the Court demands is the
same respect and courtesy that one lawyer owes to another under established ethical standards. All
lawyers, whether they are judges, court employees, professors or private practitioners, are officers of
the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the
Bar, to conduct themselves with good fidelity towards the courts. There is no exemption from this
sworn duty for law professors, regardless of their status in the academic community or the law
school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his
Compliance to be satisfactory.

(2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F. Leonen,
Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo
V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T.
Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba,
Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria
J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel,
Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose
C. Laureta, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D. Lucenario, is found
UNSATISFACTORY. These 35 respondent law professors are reminded of their lawyerly
duty, under Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due
respect to the Court and to refrain from intemperate and offensive language tending to
influence the Court on pending matters or to denigrate the Court and the administration of
justice and warned that the same or similar act in the future shall be dealt with more
severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of
violation of Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more
mindful of his duty, as a member of the Bar, an officer of the Court, and a Dean and
professor of law, to observe full candor and honesty in his dealings with the Court and
warned that the same or similar act in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these
proceedings. However, he is reminded that while he is engaged as a professor in a
Philippine law school he should strive to be a model of responsible and professional conduct
to his students even without the threat of sanction from this Court.
(5) Finally, respondents requests for a hearing and for access to the records of A.M. No. 107-17-SC are denied for lack of merit.
SO ORDERED.

G.R. No. 164790

August 29, 2008

SOCIAL SECURITY SYSTEM and LORELIE B. SOLIDUM, Branch Manager, Cubao

Branch,petitioner,
vs.
GLORIA DE LOS SANTOS, respondent.
DECISION
REYES, R.T., J.:
AN ESTRANGED wife who was not dependent upon her deceased husband for support is not
qualified to be his beneficiary.
The principle is applied in this petition for review on certiorari of the Decision1 of the Court of Appeals
(CA), awarding benefits to respondent Gloria de los Santos.
The Facts
Antonio de los Santos and respondent Gloria de los Santos, both Filipinos, were married on April 29,
1964 in Manila. Less than one (1) year after, in February 1965, Gloria left Antonio and contracted
another marriage with a certain Domingo Talens in Nueva Ecija. Sometime in 1969, Gloria went back
to Antonio and lived with him until 1983. They had three children: Alain Vincent, Arlene, and Armine.
In 1983, Gloria left Antonio and went to the United States (US). On May 8, 1986, she filed for divorce
against Antonio with the Superior Court of Orange, Sta. Ana, California. On May 21, 1983, she
executed a document waiving all her rights to their conjugal properties and other matters. The
divorce was granted on November 5, 1986.
On May 23, 1987, Antonio married Cirila de los Santos in Camalig, Albay. Their union produced one
child, May-Ann N. de los Santos, born on May 15, 1989. On her part, Gloria married Larry Thomas
Constant, an American citizen, on July 11, 1987, in the US.
On May 15, 1989, Antonio amended his records at the Social Security System (SSS). He changed
his beneficiaries from Mrs. Margarita de los Santos to Cirila de los Santos; from Gloria de los Santos
to May-Ann de los Santos; and from Erlinda de los Santos to Armine de los Santos.
Antonio retired from his employment on March 1, 1996, and from then on began receiving monthly
pension. He died of respiratory failure on May 15, 1999. Upon his death, Cirila applied for and began
receiving his SSS pension benefit, beginning December 1999.
On December 21, 1999, Gloria filed a claim for Antonios death benefits with the SSS Cubao Branch.
Her claim was denied because she was not a qualified beneficiary of Antonio. The SSS letter of
denial dated September 1, 2000 stated:
We regret to inform you that your claim is denied for the following reason/s:
We received documents showing that you have remarried in the United States to one Larry
T. Constant. You were also the one who filed for petition for dissolution of your marriage with
the deceased member, which was in fact granted by the Superior Court of California, County
of Orange.

These circumstances are sufficient ground for denial as the SSS law specifically defines
beneficiaries as "the dependent spouse, until he or she remarries, the dependent legitimate,
legitimated or legally adopted and illegitimate children who shall be the primary
beneficiary." x x x2
SSC Disposition
Gloria elevated her claim to the Social Security Commission (SSC). On February 12, 2001, she filed
a petition to claim death benefits, with a prayer that she be declared the rightful beneficiary of the
deceased Antonio.3
The SSC motu proprio impleaded Cirila as respondent in the case, it appearing that she was another
claimant to the death benefits of Antonio. Upon receipt of the summons, Cirila moved to dismiss the
petition of Gloria. She argued that Gloria had no personality to sue because the latter is neither a
dependent nor a beneficiary of Antonio, as evidenced by the E-4 form accomplished and submitted
by him when he was still alive. Gloria had also remarried an American citizen in the US. And that
she, Cirila, was the true and legal wife of Antonio.
Cirila likewise reasoned out that the authority to determine the validity of the two marriages of
Antonio lay with the regular courts. Since Gloria had already filed for settlement of the intestate
estate of Antonio before the Regional Trial Court (RTC), the petition she filed with the SSC should be
considered as forum shopping.
Gloria opposed the motion to dismiss. She contended that her marriage to Larry Constant was not
the subsequent marriage contemplated under the Social Security Law (SS Law) 4 that would
disqualify her as a beneficiary; that the decree of divorce issued by a foreign state involving Filipino
citizens has no validity and effect under Philippine law. Lastly, Gloria remonstrated that there was no
forum shopping because the petition she filed before the RTC did not involve the issue of her
entitlement to SSS benefits.
The SSC denied the motion to dismiss. After submission of position papers from both sides, it issued
a Resolution, dated February 13, 2002,5 dismissing Glorias petition with the following disposition:
WHEREFORE, this Commission finds, and so holds, that May-Ann de los Santos, daughter
of Antonio and private respondent Cirila de los Santos is the secondary beneficiary of the
former and as such, she is entitled to the balance of her fathers five-year guaranteed
pension.
Accordingly, the SSS is hereby ordered to compute the balance of the five-year guaranteed
pension less the amount of P21,200 representing the total of the monthly pensions and
dependents pension previously received by private respondent Cirila Nimo and minor MayAnn de los Santos, respectively, and to pay the latter, through her natural guardian Cirila
Nimo, the difference between the two amounts, if any. If there was overpayment of pension,
the private respondent is hereby ordered to forthwith refund the amount thereof to the SSS.
The petition is dismissed for lack of merit.
SO ORDERED.6
The SSC deemed that Gloria abandoned Antonio when she obtained a divorce against him abroad
and subsequently married another man. She thus failed to satisfy the requirement of dependency

required of primary beneficiaries under the law. The Commission likewise rejected her efforts to use
the invalidity of the divorce, which she herself obtained, to claim benefits from the SSS for her
personal profit.
However, despite all the sophistry with which petitioner, through her counsel, sought to justify
her acts in the USA, the petition must fail. The petitioner, who was primarily responsible for
obtaining the decree of marital dissolution from an American court, now wishes to invoke the
very invalidity of her divorce and subsequent marriage in order to lay hands on the benefit
she seeks. It is sheer folly, if not downright reprehensible, for the petitioner to seek to profit
from committing an act considered as unlawful under Philippine law. This Commission will
not allow itself to be used as an instrument to subvert the policies laid down in the SS Law
which it has sworn to uphold at all times. x x x7 (Emphasis added)
The SSC added that since the marriage of Antonio to Cirila was void, the latter was likewise not a
qualified beneficiary. The fruit of their union, May-Ann, was considered as an illegitimate child and
qualified as a secondary beneficiary. May-Ann was entitled to 50% of the share of the legitimate
children of Antonio in accordance with Section 8(k) of the SS Law.8 However, considering that the
legitimate children of Antonio have reached the age of majority, May-Ann is the only remaining
qualified beneficiary and was thus entitled to 100% of the benefit.
R.A. No. 8282, which is the law in force at the time of retiree Antonios death on May 15, 1999,
provides as follows:
"Section 12-B. Retirement Benefits. x x x
(d) Upon the death of the retired member, his primary beneficiaries as of the date of
his retirement shall be entitled to receive the monthly pension. Provided, That if he
has no primary beneficiaries and he dies within sixty (60) months from the start of his
monthly pension, his secondary beneficiaries shall be entitled to a lump sum benefit
equivalent to the total monthly pensions corresponding to the balance of the fiveyear guaranteed period, excluding the dependents pension." (Emphasis supplied)
Since Antonio de los Santos retired on March 1, 1996, and began receiving monthly pension
since then, the determination of who his primary beneficiaries were at that times should be
based on the relevant provisions of the applicable prevailing law then, R.A. No. 1161, as
amended, which is quoted hereunder:
"Section 8. Terms Defined. x x x
xxxx
(k) Beneficiaries. The dependent spouse until he remarries and dependent children
who shall be the primary beneficiaries. In their absence, the dependent parents, and
subject to the restrictions imposed on dependent children, the legitimate
descendants andillegitimate children who shall be the secondary beneficiaries. In the
absence of any of the foregoing, any other person designed by the covered
employee as secondary beneficiary." (Emphasis supplied)
Applying these provisions to the case at hand, May-Ann de los Santos as the illegitimate
child of Antonio and Cirila is considered her fathers secondary beneficiary who, in the
absence of a primary beneficiary x x x, becomes entitled to the balance of the five-year

guaranteed pension as Antonio died just three (3) years after he began receiving his
retirement pension, pursuant to Section 12-B par. (d) of the SS Law, as amended. 9
CA Decision
Gloria appealed the above SSC Resolution to the CA. She insisted that she, as the legal wife, was
the qualified beneficiary to Antonios death benefits.
The CA agreed with the SSC in its determination that the marriage of Gloria and Antonio subsisted
until his death and the subsequent marriages contracted by both of them were void for being
bigamous. But contrary to findings of the SSC, the CA found that being the legal wife, Gloria was
entitled by law to receive support from her husband. Thus, her status qualified Gloria to be a
dependent and a primary beneficiary under the law. The dispositive portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the Petition for Review is GRANTED and the
appealed Resolution dated February 13, 2003, is hereby REVERSED and SET ASIDE.
Respondent SSS is DIRECTED to compute the amount of benefits to which petitioner is
entitled under the law.10
Issues
Petitioner SSS and the concerned Branch head present a lone issue for Our consideration: THE
HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RESPONDENT IS
STILL QUALIFIED AS A PRIMARY BENEFICIARY OF DECEASED SSS MEMBER ANTONIO,
UNDER SECTION 12-B IN RELATION TO SECTION 8(e) and (k) OF THE SS LAW.11
The controversy revolves on who between respondent Gloria, the first wife who divorced Antonio in
the US, or Cirila, the second wife, is his primary beneficiary entitled to claim death benefits from the
SSS.
Our Ruling
At the outset, let it be recalled that in 2005, this Court ruled in Dycaico v. Social Security
System12that the proviso "as of the date of retirement" in Section 12-B(d) of Republic Act No.
8282,13 which qualifies the term "primary beneficiaries," is unconstitutional for it violates the due
process and equal protection clauses. For ready reference, the concerned provision is reproduced
below:
SECTION 12-B. Retirement Benefits. (a) A member who has paid at least one hundred
twenty (120) monthly contributions prior to the semester of retirement and who (1) has
reached the age of sixty (60) years and is already separated from employment or has
ceased to be self-employed or (2) has reached the age of sixty-five (65) years, shall be
entitled for as long as he lives to the monthly pension; Provided, That he shall have the
option to receive his first eighteen (18) monthly pensions in lump sum discounted at a
preferential rate of interest to be determined by the SSS.
xxxx
(d) Upon the death of the retired member, his primary beneficiaries as of the date of his
retirement shall be entitled to receive the monthly pension; Provided, That if he has no
primary beneficiaries and he dies within sixty (60) months from the start of his monthly

pension, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the
total monthly pensions corresponding to the balance of the five-year guaranteed period,
excluding the dependents pension. (Emphasis added)
In deciding that death benefits should not be denied to the wife who was married to the deceased
retiree only after the latters retirement, this Court in Dycaico reasoned:
x x x In particular, the proviso was apparently intended to prevent sham marriages or those
contracted by persons solely to enable one spouse to claim benefits upon the anticipated
death of the other spouse.
x x x However, classifying dependent spouses and determining their entitlement to survivors
pension based on whether the marriage was contracted before or after the retirement of the
other spouse, regardless of the duration of the said marriage, bears no relation to the
achievement of the policy objective of the law, i.e., "provide meaningful protection to
members and their beneficiaries against the hazard of disability, sickness, maternity, old age,
death and other contingencies resulting in loss of income or financial burden." x x x 14
That said, the reckoning point in determining the beneficiaries of the deceased Antonio should be
thetime of his death. There is no need to look into the time of his retirement, as was the course
followed by the SSC in resolving the claim of respondent. We note, however, that considering the
circumstances of this case, the Dycaico ruling does not substantially affect the determination of
Antonios beneficiaries.
The SS Law clearly and expressly provides who are the qualified beneficiaries entitled to receive
benefits from the deceased:
"Section 8. Terms Defined. For the purposes of this Act, the following terms shall, unless the
context indicates otherwise, have the following meanings:
xxxx
(e) Dependents The dependents shall be the following:
(1) The legal spouse entitled by law to receive support from the member;
(2) The legitimate, legitimated or legally adopted, and illegitimate child who is
unmarried, not gainfully employed and has not reached twenty-one years (21) of age,
or if over twenty-one (21) years of age, he is congenitally or while still a minor has
been permanently incapacitated and incapable of self-support, physically or mentally;
and
(3) The parent who is receiving regular support from the member.
xxxx
(k) Beneficiaries The dependent spouse until he or she remarries, the dependent
legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary
beneficiaries of the member: Provided, That the dependent illegitimate children shall be
entitled to fifty percent (50%) of the share of the legitimate, legitimated or legally adopted
children: Provided, further, That in the absence of the dependent legitimate, legitimated or

legally adopted children of the member, his/her dependent illegitimate children shall be
entitled to one hundred percent (100%) of the benefits. In their absence, the dependent
parents who shall be the secondary beneficiaries of the member. In the absence of all of the
foregoing, any other person designated by the member as his/her secondary beneficiary.
As found by both the SSC and the CA, the divorce obtained by respondent against the deceased
Antonio was not binding in this jurisdiction. Under Philippine law, only aliens may obtain divorces
abroad, provided they are valid according to their national law.15 The divorce was obtained by
respondent Gloria while she was still a Filipino citizen and thus covered by the policy against
absolute divorces. It did not sever her marriage ties with Antonio.
However, although respondent was the legal spouse of the deceased, We find that she is
stilldisqualified to be his primary beneficiary under the SS Law. She fails to fulfill the requirement of
dependency upon her deceased husband Antonio.
Social Security System v. Aguas16 is instructive in determining the extent of the required
"dependency" under the SS Law. In Aguas, the Court ruled that although a husband and wife are
obliged to support each other, whether one is actually dependent for support upon the other cannot
be presumed from the fact of marriage alone.17
Further, Aguas pointed out that a wife who left her family until her husband died and lived with other
men, was not dependent upon her husband for support, financial or otherwise, during the entire
period.
Said the Court:
In a parallel case involving a claim for benefits under the GSIS law, the Court defined
adependent as "one who derives his or her main support from another. Meaning, relying on,
or subject to, someone else for support; not able to exist or sustain oneself, or to perform
anything without the will, power, or aid of someone else." It should be noted that the GSIS
law likewise defines a dependent spouse as "the legitimate spouse dependent for support
upon the member or pensioner." In that case, the Court found it obvious that a wife who
abandoned the family for more than 17 years until her husband died, and lived with other
men, was not dependent on her husband for support, financial or otherwise, during that
entire period. Hence, the Court denied her claim for death benefits.
The obvious conclusion then is that a wife who is already separated de facto from her
husband cannot be said to be "dependent for support" upon the husband, absent any
showing to the contrary. Conversely, if it is proved that the husband and wife were still living
together at the time of his death, it would be safe to presume that she was dependent on the
husband for support, unless it is shown that she is capable of providing for herself. 18
Respondent herself admits that she left the conjugal abode on two (2) separate occasions, to live
with two different men. The first was in 1965, less than one year after their marriage, when she
contracted a second marriage to Domingo Talens. The second time she left Antonio was in 1983
when she went to the US, obtained a divorce, and later married an American citizen.
In fine, these uncontroverted facts remove her from qualifying as a primary beneficiary of her
deceased husband.

WHEREFORE, the petition is GRANTED and the appealed Decision REVERSED and SET ASIDE.
The Resolution of the Social Security Commission is REINSTATED.
SO ORDERED.

A.M. No. P-96-1211

March 31, 2000

Executive Judge PACIFICO S. BULADO, complainant,

vs.
DOMINGO TIU, Jr., Utility Worker I, Regional Trial Court, Dumaguete City, Branch
44, respondent.
RESOLUTION
PER CURIAM:
In a letter dated January 18, 1986, Judge Pacifico S. Bulado, then the Executive Judge of the
Regional Trial Court, Negros Oriental, referred to the Office of the Court Administrator the matter of
Domingo T. Tiu, Jr., a utility worker assigned to Branch 44 of the RTC, Dumaguete City. Tiu had
numerous enemies among his co-employees, and had to be re-assigned to different stations several
times. Judge Bulado stated in his letter that Tiu may fittingly be called "notoriously undesirable."
From Branch 44, Tiu was detailed to the Office of the Clerk of Court of the RTC. However, he
performed poorly in said office. Moreover, he physically assaulted the clerk of court of Branch 33,
after sexually harassing her. Tiu was ordered to return to Branch 44, but the presiding judge of said
court, Judge Alvin L. Tan, wrote Judge Bulado to state that if Tiu returned to his sala, there would be
"fracas everyday which will derail the administration of justice."1
Tiu was then detailed to the Office of the Clerk of Court of the Municipal Trial Court in Cities,
Dumaguete City, but such office also rejected him. He was then detailed to Branch 40.
Tiu's other infractions include: (1) not reporting for work and instead hiring somebody else to do his
work for him; (2) using the office of Branch 44 as his personal quarters, and inviting another person
to live with him therein; and (3) interfering with a pending criminal case by promising to release a bail
bond absent a court order therefor.2 As regards the second and third infractions, Branch 44 clerk of
court Atty. Armando Ricafort issued separate memoranda to respondent ordering him not to use the
office as his residence and not to repeat his interference with a case.
Upon recommendation of the OCA, we opted to treat Judge Bulado's letter as an administrative
complaint against Tiu and ordered the latter to comment thereon.
In his comment, respondent branded as without basis Judge Bulado's allegations against him. He
argued that the complaint is merely a personal vendetta, caused by an old feud within the Bulado
clan, to which both Judge Bulado and respondent belong. Respondent also pointed out that he filed
administrative complaints against the same court personnel complaining against him, including
Judge Bulado and Atty. Ricafort, and that the present complaint against him is simply harassment.
He also claimed that Judge Bulado asked him to withdraw his complaint against Atty. Ricafort and
the other court personnel, in exchange for a promotion and the dismissal of a case against
respondent filed in another sala of the RTC.
Replying to respondent's comment, Judge Bulado pointed out that the basis of his letter complaint
were the letters and reports he received from other court personnel regarding respondent's
misbehavior. As regards the alleged feud within the Bulado clan, Judge Bulado explained that this
had long been settled and that members of the family had restored their good relations.

Judge Bulado stated that the Office of the Ombudsman dismissed the complaint filed by respondent
against Atty. Ricafort. He denied having asked respondent to withdraw his complaint, and pointed
out that this Court would resolve administrative cases notwithstanding withdrawal of the complaint.
He also stressed that he could not have promised respondent a promotion since respondent was not
even working in his sala.3
On August 4, 1997, we referred this administrative matter to the OCA for evaluation, report and
recommendation.
In a memorandum dated February 2, 1998, the OCA recommended respondent's dismissal from the
service, with forfeiture of all benefits and with prejudice to re-entry to any government office,
including government-owned and controlled corporations.
The OCA gave weight to Judge Bulado's allegations because his letter-complaint was supported by
numerous affidavits executed by other court personnel, among them judges and clerks of court, all
attesting to respondent's errant behavior. The OCA particularly denounced the violence and
savagery displayed by respondent (1) when he engaged Madonna Macalua, a clerk at Branch 44,
RTC, Dumaguete City, in a verbal tussle as he interfered with a criminal case pending before Branch
44, whose records were under the care and custody of Macalua; and (2) when he punched Atty.
Nieves Ivy Y. Carriaga, clerk of court of Branch 33, RTC, Dumaguete City, in the face. Such
behavior, according to the OCA, does not have a place in the judiciary.
Meanwhile, in a 3rd Indorsement dated May 12, 1999, Judge Alvin L. Tan, presiding judge of Branch
44, RTC, Dumaguete City, informed this Court that respondent has a pending application for the
position of Clerk III at Branch 41, RTC, Dumaguete City. The application could not be acted upon
due to this pending administrative case against respondent, per Section 14, Rule VI of the Omnibus
Rules of the Civil Service, which disqualifies a person with a pending administrative case from
promotion.
Judge Tan informed the Court that Judge Bulado, the complainant in this case, had already forgiven
respondent, who had reportedly mended his ways. In this regard, Judge Tan recommended that the
case against respondent be withdrawn to pave the way for respondent's promotion to Clerk III.
Required to evaluate Judge Tan's recommendation, the OCA reiterated its earlier memorandum
recommending the dismissal of respondent. The OCA pointed out that actions in administrative
cases are independent of the will of the complainant. Public interest requires that proceedings
therein continue despite withdrawal of the complaint.
1awp++i1

We agree with the recommendation of the OCA.

While the complainant in this case may have forgiven respondent, this Court, charged as it is with
enforcing discipline in the judiciary, cannot simply close its eyes to respondent's acts of extreme
intransigence. Withdrawal of the complaint will not free respondent from his administrative
liability,4 particularly because administrative proceedings against public employees are imbued with
public interest, public office being a public trust.5
The need to maintain the faith and confidence of the people in the government, its agencies and its
instrumentalities requires that proceedings in administrative cases should not be made to depend on
the whims and caprices of the complainants who are, in a real sense, only witnesses therein. 6 This
Court cannot be bound by the unilateral act of a complainant in a matter that involves its disciplinary
authority over all employees of the judiciary; otherwise, our disciplinary power may be put to naught. 7

The records clearly reveal that respondent had committed acts amounting to grave misconduct.
Under Section 22, Rule XIV of the Omnibus Rules of the Civil Service, such an offense is punishable
by dismissal at the first instance, Under Section 9 of the same rule, the penalty of dismissal shall
carry with it forfeiture of leave credits and retirement benefits, and disqualification from
reemployment in the government service.
WHEREFORE, respondent Domingo Tiu, Jr., Utility Worker, Regional Trial Court, Branch 44,
Dumaguete City, is hereby DISMISSED from the service, with forfeiture of all retirement and other
benefits, and with prejudice to reemployment in any branch of the government, including
government-owned and controlled corporations.
SO ORDERED.

1wphi1.nt

ATTY. EMMANUEL PONTEJOS,

Petitioner,

G.R. No. 148600

Present:
PUNO, C.J., Chairperson,
CARPIO,
CORONA,
LEONARDO-DE CASTRO, and
BERSAMIN, JJ.

- versus -

HON. ANIANO A DESIERTO and

RESTITUTO AQUINO,
Respondents.

Promulgated:
July 7, 2009

x------------------------------------------------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner seeks to
set aside and annul the Decision[1] dated August 21, 2000 as well as the Resolution[2] dated June
15, 2001 of the Court of Appeals (CA) in CA-G.R. SP No. 54474.
The CA decision dismissed the petition filed by herein petitioner assailing the decision[3] of
Aniano Desierto in his capacity as Ombudsman which found petitioner guilty of grave
misconduct and imposed upon him the penalty of dismissal.
The factual antecedents of the case are summarized by the CA thus:
On August 26, 1998, the Housing and Land Regulatory Board (HLURB, for
brevity) received a Notice of Appeal filed by Rasemco, Inc., represented by its
president Restituto Aquino, in a case captioned as Rasemco Construction Corp.
vs. Hammercon, Inc. docketed as HLURB Case No. 9817 decided by Arbiter
Emmanuel Pontejos, petitioner herein. In said Notice of Appeal, Rasemco,
through Aquino, asked for the nullification of all the proceedings conducted
before Arbiter Pontejos for alleged extortion, bribery and graft and corruption
committed by Pontejos in conspiracy with Director Wilfredo Imperial and Ms.
Carmen Atos, both of HLURB and one Roderick Ngo, officer of Hammercon,
Inc. Attached to the Notice of Appeal were a photocopy of Aquinos letter to
President Joseph Estrada dated August 12, 1998 and his complaint-affidavit. The
complaint-affidavit imputed to the named officer and employee of HLURB the
following acts, viz:

1. Demanding and receiving monetary consideration in exchange for

offers of assistance in securing a favorable decision in a pending
case;
2. Inaction of Director Imperial of complainants opposition to the
issuance of license to sell in favor of Rasemco, Inc., and
subsequently, his issuance of said license despite his supposed
knowledge about the existence of legal defect or impediment in
applicants title;
3. Arbiter Pontejos preparing and/or editing pleadings such as draft
petition for review as well as other legal documents such as
affidavits and contracts for Rasemco; and
4. Arbiter Pontejos and Ms. Atos (para-legal staff of Arbiter Pontejos
meeting and conferring with Aquino and his lawyer, Atty.
Venturanza, outside of office premises.
The gravity of the allegations contained in the complaint prompted the
HLURB to conduct an investigation despite the absence of a formal
administrative complaint. On August 28, 1998, Commissioner Francisco L.
Dagalan of the Legal and Administrative Affairs of HLURB directed Dir.
Imperial, Atty. Pontejos and Ms. Atos to submit their comments to Mr. Aquinos
affidavit complaint within five (5) days from receipt of the memorandum dated
August 28, 1998. On September 2, 1998, petitioner and Ms. Atos submitted
separate explanations denying the allegations in the complaint and giving their
own version of the events. Meanwhile, Dir. Imperial submitted a Manifesto
written in Filipino, dated August 31, 1998, as his answer to the complaint.
On September 8, 1998, HLURB Chief Executive Officer (CEO) and
Commissioner Romulo Q. Fabul issued HLURB Special Order No. 55 creating a
fact-finding committee to investigate the background and circumstances of Mr.
Aquinos complaint against Dir. Imperial, Arbiter Pontejos and Carmen Atos and
determine the remedial and preventive management measures that HLRUB must
undertake, if any. Commissioner Francisco Dagalan was named chairman of the
fact-finding committee and Commissioners Roque Arrieta Magno and Teresita A.
Desierto as members.
While the fact-finding committee of the HLURB was conducting their
investigation, Mr. Aquino filed an administrative complaint with the Office of the
Ombudsman against the same persons on alleged conspiracy to extort money
form him under a promise that a favorable decision will be rendered in a case
pending before HLURB. Attached to the complaint are the sworn statements of
Ruth Adel and Atty. Thaddeus E. Venturanza, Resemcos finance officer and legal
counsel, respectively, and a photocopy of the check allegedly received by Arbiter
Pontejos through Ms. Atos. The Evaluation and Preliminary Investigation Bureau
(EPIB, for brevity) of the Office of the Ombudsman conducted a preliminary
investigation and directed the respondents to file their counter-affidavits and other
supporting evidence. On September 25, 1998, respondent Atos filed her counter-

affidavit denying the material allegations of the complaint and raised the defense
that the check given by Ruth Adel was in payment of a personal transaction
between them. The counter-affidavit of respondent Pontejos submitted on
December 4, 1998, also denied the material allegations of the complaint and
dismissed the complaint as nothing more than a disgruntled losing party seeking
to gain leverage. Repondent Imperial also denied the allegations linking him to
the alleged extortion perpetrated by Atty. Pontejos and Ms. Atos and in the receipt
of his alleged share in the bribe.
Meanwhile, the fact-finding committee of the HLURB proceeded with
their own investigation, limiting their inquiry into the administrative aspect of the
complaint. On January 29, 1999, the committee submitted its report on the
investigation proposing among others to indorse the report to the Office for the
Ombudsman for its consideration.
On February 18, 1999, public respondent Ombudsman Aniano A. Desierto
issued an order placing petitioner Pontejos under preventive suspension for a
period of six (6) months without pay and further directing him and Dir. Imperial
to file their counter-affidavits and other controverting evidence to the
complaint. Thereafter or on February 19, 1999, the EPIB of the Office of the
Ombudsman issued a joint resolution recommending that: 1) an Information for
Estafa (one count) be filed against respondent Atty. EMMANUEL T. PONTEJOS
befor the Regional Trial Court of Quezon City; 2) an Information for Direct
Bribery be filed against respondent Atty. EMMANUEL T. PONTEJOS before the
Regional Trial Court of Quezon City; 3) an Information for Unauthorized Practice
of Profession in violation of R.A. 6713 to be filed against Atty. EMMANUEL T.
PONTEJOS before the Metropolitan Trial Court of Quezon City; 4) the complaint
against Director WILFREDO I. IMPERIAL and RODERICK NGO be dismissed
for insufficiency of evidence; and 5) respondent CARMENCITA ATOS y. RUIZ
be extended immunity from criminal prosecution in accordance with Section 17
of R.A.A 6770 and be utilized as a state witness. Respondent Pontejos (petitioner,
herein) moved to reconsider the Order of the Office of the Ombudsman dated
February 18, 1999 which motion was denied in an Order dated March 5, 1999. In
accordance with the recommendation of the EPIB, the Office of the Ombudsman
filed criminal informations for bribery and estafa against respondent Atty.
Emmanuel T. Pontejos. Meanwhile, in a Resolution dated June 21, 1999, the
Office of the Ombudsman granted Carmencita Atos immunity from criminal
prosecution for bribery and estafa filed with the Regional Trial Court of Quezon
City and in the Metropolitan Trial Court of Quezon City.
On June 29, 1999, the Office of the Ombudsman disposed of the
administrative complaint as follows:
WHEREFORE, in view of the foregoing premises, we hereby
declare respondent Emmanuel Pontejos guilty of Grave

Misconduct, and as such, the penalty of dismissal from the service

is hereby meted on him.
We hereby absolve respondent Wilfredo Imperial of the
charges for lack of substantial evidence.
SO ORDERED.
Petitioner moved to reconsider the above decision but this was denied by the
Ombudsman in an Order dated July 21, 1999. Thereafter, he filed a petition for review under
Rule 43 of the Rules of Court in the CA. On August 21, 2000, the CA dismissed the petition and
upheld the Ombudsmans decision finding petitioner guilty of grave misconduct. Petitioner
moved for reconsideration but the CA denied his motion.
Hence, this petition based on the following assignment of errors:
1. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING
THAT PETITIONER WAS DENIED DUE PROCESS BY THE OFFICE OF
THE OMBUDSMAN;
2. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING
THAT THE PROCEEDINGS BEFORE THE OFFICE OF OMBUDSMAN
WAS TAINTED WITH ILL-MOTIVES;
3. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING
THAT THE GRANT OF IMMUNITY TO MS. CARMENCITA R. ATOS
WAS IMPROPER;
4. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING
THAT THE OFFICE OF THE OMBUSMAN SINGLED OUT HEREIN
PETITIONER FOR PREVENTIVE SUSPENSION
5. THE HONORABLE COURT OF APPEALS ERRED IN GIVING WEIGHT
TO THE AFFIDAVIT DATED 18 FEBRUARY 1999 OF MS. ATOS;
6. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING
THAT THERE WAS A FAILURE TO PROSECUTE ON THE PART OF
PRIVATE RESPONDENT.
At the outset, it must be stated that petitioner had already raised the same issues and
arguments before this Court in the case of Pontejos v. Office of the Ombudsman[4]decided on
February 22, 2006. That case involved exactly the same set of facts and issues as in this case,
except that what was challenged therein was the February 19, 1999 Joint Resolution of the
Evaluation and Preliminary Investigation Bureau (EPIB) of the Office of the Ombudsman which
found probable cause against petitioner for estafa, direct bribery and illegal practice of
profession, whereas what is assailed in the instant case is the decision of the Ombudsman finding
petitioner guilty of grave misconduct and dismissing him from service. We held in that case,
penned by former Chief Justice Artemio V. Panganiban:
Petitioner theorizes that the OMB resolved the Complaint against him for
reasons other than the merits of the case. He specifically charges HLURB
Commissioner Teresita Desierto, the spouse of Ombudsman Desierto, as the

unseen hand behind the filing of the criminal cases. Commissioner Desierto
allegedly harbored resentment against him for signing a Manifesto issued by some
lawyers in the HLURB. He also recalls Commissioner Desierto threatening him if
he did not resign from the HLURB. Thus, he concludes that the proceedings
before the OMB were tainted with ill motives.
We cannot accept petitioners arguments. The Court observes that his
arguments are merely conjectures bereft of any proof. He presented absolutely no
evidence of any irregularity in the proceedings before the OMB. There was no
showing that Commissioner Desierto interfered in any manner in the proceedings
before the OMB. Other than petitioners bare assertions, there was also no proof
that Commissioner Desierto bore a grudge against Pontejos.
xxx
The decision on whether to prosecute and whom to indict is executive in
character. It is the prosecution that could essentially determine the strength of
pursuing a case against an accused.The prosecutorial powers include the
discretion of granting immunity to an accused in exchange for testimony against
another. xxx
It is constitutionally permissible for Congress to vest the prosecutor with
the power to determine who can qualify as a witness and be granted immunity
from prosecution. Noteworthy, there are many laws that allow government
investigators and prosecutors to grant immunity. In relation to this, the Court has
previously upheld the discretion of the Department of Justice (DOJ), Commission
on Elections (Comelec), and the Presidential Commission on Good Government
(PCGG) to grant immunity from prosecution on the basis of the respective laws
that vested them with such power.
The OMB was also vested with the power to grant immunity from
prosecution, thus:
SEC. 17.

x x x.

Under such terms and conditions as it may determine,

taking into account the pertinent provisions of the Rules of Court,
the Ombudsman may grant immunity from criminal prosecution to
any person whose testimony or whose possession and production
of documents or other evidence may be necessary to determine the
truth in any hearing, inquiry or proceeding being conducted by the
Ombudsman or under its authority, in the performance or in the
furtherance of its constitutional functions and statutory objectives.
x x x.

According to Pontejos, the OMBs authority to grant

immunity is subject to the pertinent provisions of the Rules of
Court. He claims that the procedural rules allow the discharge of
an accused as state witness only upon conformity of the trial
court. An information against the accused must first be filed in
court prior to the discharge. Moreover, the prosecution could only
recommend and propose, but not grant immunity.
The pertinent provision of the Rules of Court reads:
Sec. 17. Discharge of accused to be state witness. When
two or more persons are jointly charged with the commission of
any offense, upon motion of the prosecution before resting its case,
the court may direct one or more of the accused to be discharged
with their consent so that they may be witnesses for the state when
after requiring the prosecution to present evidence and the sworn
statement of each proposed state witness at a hearing in support of
the discharge, the court is satisfied that:
(a)
There is absolute necessity for the testimony of the
accused whose discharge is requested;
(b) There is no other direct evidence available for the
proper prosecution of the offense committed, except the testimony
of said accused;
(c)
The testimony of said accused can be substantially
corroborated in its material points;
(d)

Said accused does not appear to be the most guilty;

and
(e)
Said accused has not at any time been convicted of
any offense involving moral turpitude.
Evidence adduced in support of the discharge shall
automatically form part of the trial. If the court denies the motion
for discharge of the accused as state witness, his sworn statement
shall be inadmissible in evidence.
The Court has already held that this provision is applicable only to cases
already filed in court. The trial court is given the power to discharge an accused as
a state witness only because it has already acquired jurisdiction over the crime
and the accused.

As stated earlier, the power to choose who to discharge as state witness is

an executive function. Essentially, it is not a judicial prerogative. The fact that an
individual had not been previously charged or included in an information does not
prevent the prosecution from utilizing said person as a witness.
Section 17 of the Ombudsman Act requires conformity with the Rules of
Court. Accordingly, this should be read as requiring the following circumstances
prior to the discharge: (1) absolute necessity for the testimony of the accused
sought to be discharged; (2) no direct evidence available for the proper
prosecution of the offense committed except the testimony of the said accused; (3)
the testimony of the said accused can be substantially corroborated in its material
points; (4) said accused does not appear to be most guilty; and (5) said accused
has not any time been convicted of any offense involving moral turpitude.
Indeed, there must be a standard to follow in the exercise of the
prosecutors discretion. The decision to grant immunity cannot be made
capriciously. Should there be unjust favoritism, the Court may exercise its
certiorari power.
In the present case, certiorari is not proper. Pontejos allegations do not
show, much less allege, grave abuse of discretion in the granting of immunity to
Atos. The OMB considered Atos position, record and involvement in the case
prior to the discharge.
Pontejos also claims that he was not furnished a copy of Atos Affidavit
that connected him to the crimes. Since he was not afforded the opportunity to
challenge the assertions in said Affidavit, his right to due process had allegedly
been violated.
The alleged denial of due process is controverted by the facts. It appears
from the records that Pontejos eventually received a copy of the aforementioned
Affidavit. More importantly, he had challenged the Affidavit in his Motion for
Reinvestigation and request for reconsideration of the Review and
Recommendation of the Overall Deputy Ombudsman. Pontejos contention must
necessarily fail because -- as shown -- he had the opportunity to be heard and in
fact, availed of it.
The foregoing ruling is the law of the case and thus lays to rest the issues posed by
petitioner in his assignment of errors. We see no reason in this case to deviate therefrom. It is a
basic legal principle that whatever is once irrevocably established as the controlling legal rule or
decision between the same parties in the case continues to be the law of the case, whether correct
on general principles or not, so long as the facts on which such decision was predicated continue
to be the facts of the case before the court.[5]
We are now left to discuss petitioners liability for grave misconduct and the propriety of
the penalty of dismissal imposed upon him.

Petitioner contends that he was denied of his right to due process when he was not able to
confront Aquino who failed to appear in two hearings. He further avers that Aquinos absence in
those hearings constitutes failure to prosecute and a ground for the dismissal of the
administrative case against him. Petitioner insists that no substantial evidence existed to hold him
liable for grave misconduct as the Ombudsman merely relied on the affidavits of Carmencita
Atos and respondent Aquinos subordinates namely Ruth Adel, Rowena Alcovendas and Atty.
Thaddeus Venturanza, in determining his administrative liability.
Due process in an administrative context does not require trial-type proceedings similar
to those in courts of justice. Where opportunity to be heard either through oral arguments or
through pleadings is accorded, there is no denial of procedural due process. A formal or trial-type
hearing is not at all times and in all instances essential. The requirements are satisfied where the
parties are afforded fair and reasonable opportunity to explain their side of the controversy at
hand.[6]
In the instant case, petitioner had ample opportunity to ventilate his case. On the
administrative complaint filed by Aquino against him with the Office of the Ombudsman,
petitioner had received sufficient information which, in fact, enabled him to prepare his
defense. He submitted his counter-affidavit denying the allegations in the complaint. He was also
able to seek reconsideration of the Ombudsmans Order placing him under preventive suspension
for six (6) months. Finally, he was able to appeal the Ombudsmans ruling to the CA. Clearly,
petitioner had all the opportunity to be heard, present his case and submit evidence in his
defense.
We have consistently held that the essence of due process is simply the opportunity to be
heard or, as applied to administrative proceedings, the opportunity to explain ones side or the
opportunity to seek a reconsideration of the action or ruling complained of. Any seeming defect
in its observance is cured by the filing of a motion for reconsideration.Denial of due
process cannot be successfully invoked by a party who has had the opportunity to be heard on his
motion for reconsideration.[7] As the records would show, petitioner had filed a motion for
reconsideration of the decision of the Ombudsman. Hence, petitioners protestations that he had
been deprived of due process must necessarily fail.
The absence of Aquino in two hearings is not a sufficient ground to say that due process
was not afforded petitioner. Administrative bodies are not bound by the technical niceties of law
and procedure and the rules obtaining in courts of law. In administrative proceedings, technical
rules of procedure and evidence are not strictly applied and administrative due process cannot be
fully equated with due process in its strict judicial sense. In fact, it is well-settled that, in
administrative cases, the requirement of notice and hearing does not connote full adversarial
proceedings.[8] Thus, petitioner was not denied due process when he failed to cross-examine
Aquino since he was given the opportunity to be heard and present his evidence. To repeat, in
administrative cases, a fair and reasonable opportunity to explain ones side suffices to meet the
requirements of due process.[9]

Petitioner cites Section 3, Rule 17 of the 1997 Rules of Civil Procedure to support his
argument that the administrative case against him should have been dismissed for failure to
prosecute because Aquino failed to appear in two hearings of the EPIB of the Office of the
Ombudsman.
Section 3, Rule 17 of the 1997 Rules of Civil Procedure, states
SEC. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation of his evidence in chief on
the complaint, or to prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his counterclaim in the same or
in a separate action. This dismissal shall have the effect of an adjudication upon
the merits, unless otherwise declared by the court.
The provisions of the Rules of Court may be applied suppletorily to the rules of
procedure of administrative bodies exercising quasi-judicial powers, unless otherwise provided
by law or the rules of procedure of the administrative agency concerned. The Rules of Court,
which are meant to secure to every litigant the adjective phase of due process of law, may be
applied to proceedings before an administrative body with quasi-judicial powers in the absence
of different and valid statutory or administrative provisions prescribing the ground rules for the
investigation, hearing and adjudication of cases before it.[10]
However, even if Section 3, Rule 17 of the Rules of Court is applied to the subject
administrative proceedings, petitioners argument on the matter of failure to prosecute still lacks
merit. Section 3, Rule 17 provides for three instances where the complaint may be dismissed due
to the plaintiff's fault: (1) if he fails to appear during a scheduled trial, especially on the date for
the presentation of his evidence in chief; (2) if he fails to prosecute his action for an
unreasonable length of time; and (3) if he fails to comply with the rules or any order of the court.
[11]

While a court can dismiss a case on the ground of non prosequitur, the real test for the
exercise of such power is whether, under the circumstances, plaintiff is chargeable with want of
due diligence in failing to proceed with reasonable promptitude. In the absence of a pattern or
scheme to delay the disposition of the case or a wanton failure to observe the mandatory
requirement of the rules on the part of the plaintiff, as in the case at bar, courts should decide to
dispense with rather than wield their authority to dismiss.[12]
Aquino, who initiated the complaint against petitioner, has not shown culpable
negligence that would warrant the dismissal of his complaint. As pointed out by the Solicitor
General in his Comment filed with this Court, records show that Aquino appeared at the
clarificatory hearing called by the EPIB.[13] He even brought to the attention of the proper
authorities petitioners misconduct. Likewise, the CA noted that respondent had not manifested a
lack of interest to prosecute. Besides, in an administrative case, the complainant, like Aquino, is
a mere witness. No private interest is involved in an administrative case as the offense is

committed against the government.[14] Thus, his absence in two hearings is not a ground for the
dismissal of the case against petitioner.
We agree with the conclusions of the Office of the Ombudsman as affirmed by the CA
that there was sufficient evidence to support the finding of administrative liability on the part of
petitioner. It has been substantially established that petitioner demanded and received the amount
of One Hundred Thousand Pesos (P100,000.00) in exchange for a favorable decision of a
case[15] then pending in the HLURB where petitioner was an Arbiter. The money was given in
installments from January to March 1998.[16] The statements of witnesses Atos, Adel and Atty.
Venturanza are clear, categorical and replete with the details establishing how the offense was
perpetrated by petitioner. Their statements corroborated the allegations of complainant
Aquino. The petitioner failed to present any evidence to counter the aforesaid positive and
unequivocal declarations of these witnesses, same, and as such, his guilt has been adequately
shown. His bare denial undoubtedly paled in comparison with the witnesses categorical
declarations.
The Office of the Ombudsman and the appellate court invariably found petitioner guilty
of grave misconduct. The Court affirms this finding following the salutary rule that factual
findings of administrative bodies are accorded not only respect but even finality by the Court. In
administrative proceedings, the quantum of evidence required is only substantial. The gauge of
substantial evidence is satisfied where there is reasonable ground to believe that petitioner is
guilty of misconduct, even if the evidence might not be overwhelming. Here, there is substantial
evidence to support the Ombudsmans finding, as sustained by the CA, that petitioner is guilty of
the offense charged against him. Absent a clear showing of grave abuse of discretion, the
findings of the Ombudsman, when supported by substantial evidence, are conclusive and shall
not be disturbed by the Court.[17] It is not the task of this Court to weigh once more the evidence
submitted before administrative bodies and to substitute its own judgment for that of the latter.[18]
We thus find petitioner guilty of grave misconduct. By his actuations, he violated the
policy of the State to promote a high standard of ethics in the public service. Public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.[19] Public
servants must bear in mind this constitutional mandate at all times to guide them in their actions
during their entire tenure in the government service.
Under the Civil Service Law and its implementing rules, grave misconduct is punishable
by dismissal from service. Specifically, Section 22, Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 provides:
Sec. 22. Adiministrative offenses with its corresponding penalties are classified
into grave, less grave, and light, depending on the gravity of its nature and effects
of acts on the government service.
The following are grave offenses with its corresponding penalties:
xxx

(c) Grave Misconduct

1st Offense Dismissal
xxx.
To end, it must be stressed that grave misconduct has always been and should remain
anathema in the civil service. It inevitably reflects on the fitness of a civil servant to continue in
office. When an officer or employee is disciplined, the object sought is not the punishment of
such officer or employee but the improvement of the public service and the preservation of the
publics faith and confidence in the government.[20]
WHEREFORE, the petition for review is hereby DENIED. The assailed decision of the CA
in CA-G.R. SP No. 54474 is hereby AFFIRMED.
SO ORDERED.

G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO
OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.

VITUG, J.:
The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed
into focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction.
The petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR
Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one
of the petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers
Management Council under the Office of the City Mayor, was sent to, and received by, the private
respondents (being the officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a grace-period of three (3) days (up to 12
July 1990) within which to vacate the questioned premises of North EDSA. 1 Prior to their receipt of the
demolition notice, the private respondents were informed by petitioner Quimpo that their stalls should be
removed to give way to the "People's Park". 2 On 12 July 1990, the group, led by their President Roque
Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against the
petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then
Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents' stalls, sarisari stores, and carinderia along North EDSA. The complaint was docketed as CHR Case No. 901580. 3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to desist from demolishing
the stalls and shanties at North EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR. 4
On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well
as CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-sari stores and carinderia, 5 the CHR, in its resolution of 1
August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of
the private respondents to purchase light housing materials and food under the Commission's supervision
and again directed the petitioners to "desist from further demolition, with the warning that violation of said
order would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred,
among other things, that:
1. this case came about due to the alleged violation by the (petitioners) of the InterAgency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to
therein refers to moratorium in the demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;
5. that the complainants (were) occupying government land, particularly the sidewalk
of EDSA corner North Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the
motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that
the Commission's authority should be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly violated in this case (were) not civil
and political rights, (but) their privilege to engage in business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with
the contempt charge that had meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss was still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the
demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine
of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental
motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the
gross violations of their human and constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a
paper tiger limited only to investigating civil and political rights, but it (should) be (considered) a
quasi-judicial body with the power to provide appropriate legal measures for the protection of human
rights of all persons within the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life and
to dignity. All these brazenly and violently ignored and trampled upon by respondents
with little regard at the same time for the basic rights of women and children, and
their health, safety and welfare. Their actions have psychologically scarred and

traumatized the children, who were witness and exposed to such a violent
demonstration of Man's inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was subsequently reinstated,
however, in our resolution 16 of 18 June 1991, in which we also issued a temporary restraining order,
directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private respondents whose
stalls were demolished by the petitioners at the instance and authority given by the Mayor of Quezon
City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his
comment for public respondent CHR. The latter thus filed its own comment, 18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to dispense with the comment of private
respondent Roque Fermo, who had since failed to comply with the resolution, dated 18 July 1991,
requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive Order No.
163, 20 issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so
superseded as well, the Presidential Committee on Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution, thus: to
(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to

enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body. 23 This view, however, has not heretofore been shared by this Court. In Cario v. Commission on
Human Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has
observed that it is "only the first of the enumerated powers and functions that bears any resemblance to
adjudication or adjudgment," but that resemblance can in no way be synonymous to the adjudicatory
power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law
to be another court or quasi-judicial agency in this country, or duplicate much less
take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is
not adjudication, and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the authority of
applying the law to those factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other kernel of this
controversy and, its is, to determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to
define it, albeit not a few have tried, could at best be described as inconclusive. Let us observe. In a
symposium on human rights in the Philippines, sponsored by the University of the Philippines in
1977, one of the questions that has been propounded is "(w)hat do you understand by "human

rights?" The participants, representing different sectors of the society, have given the following varied
answers:
Human rights are the basic rights which inhere in man by virtue of his humanity. They
are the same in all parts of the world, whether the Philippines or England, Kenya or
the Soviet Union, the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights of the
accused to due process of law; political rights, such as the right to elect public
officials, to be elected to public office, and to form political associations and engage
in politics; and social rights, such as the right to an education, employment, and
social services. 25
Human rights are the entitlement that inhere in the individual person from the sheer fact
of his humanity. . . . Because they are inherent, human rights are not granted by the State
but can only be recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and cultural rights defined
in the Universal Declaration of Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They are part of
his natural birth, right, innate and inalienable. 28

The Universal Declaration of Human Rights, as well as, or more specifically, the International
Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political
Rights, suggests that the scope of human rights can be understood to include those that relate to an
individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the
term to the universally accepted traits and attributes of an individual, along with what is generally
considered to be his inherent and inalienable rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional
Commission in adopting the specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back at the country's experience under
the martial law regime which may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of
the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in the
Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights
most of the human rights expressed in the International Covenant, these rights
became unavailable upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the thousands became subject
to arrest upon suspicion, and were detained and held for indefinite periods,
sometimes for years, without charges, until ordered released by the Commander-inChief or this representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were strikes. Press and
other mass media were subjected to censorship and short term licensing. Martial law
brought with it the suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the Supreme Court. They
were required to submit letters of resignation and were dismissed upon the

acceptance thereof. Torture to extort confessions were practiced as declared by

international bodies like Amnesty International and the International Commission of
Jurists.
Converging our attention to the records of the Constitutional Commission, we can see the following
discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the commission can
be most effective.
MR. BENGZON. That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every
single right of an individual involves his civil right or his political right. So, where do
we draw the line?
MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of
Human Rights which addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on. These are very specific
rights that are considered enshrined in many international documents and legal
instruments as constituting civil and political rights, and these are precisely what we
want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as defined
in the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed to
the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings
cases which perhaps heretofore or at this moment are under the jurisdiction of the
ordinary investigative and prosecutorial agencies of the government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to define
the specific parameters which cover civil and political rights as covered by the

international standards governing the behavior of governments regarding the

particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which we
would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are
really trying to say is, perhaps, at the proper time we could specify all those rights
stated in the Universal Declaration of Human Rights and defined as human rights.
Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill
of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I would
like to state that in the past regime, everytime we invoke the violation of human
rights, the Marcos regime came out with the defense that, as a matter of fact, they
had defended the rights of people to decent living, food, decent housing and a life
consistent with human dignity.
So, I think we should really limit the definition of human rights to political rights. Is
that the sense of the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised by
the previous speaker.
There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and
the prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other crimes committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as much
as possible, without prejudice to future expansion. The coverage of the concept and
jurisdictional area of the term "human rights". I was actually disturbed this morning
when the reference was made without qualification to the rights embodied in the

universal Declaration of Human Rights, although later on, this was qualified to refer
to civil and political rights contained therein.
If I remember correctly, Madam President, Commissioner Garcia, after mentioning
the Universal Declaration of Human Rights of 1948, mentioned or linked the concept
of human right with other human rights specified in other convention which I do not
remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of
1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention on
Civil and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
covenant mentioned. It is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering whether it would be
wise to link our concept of human rights to general terms like "convention," rather
than specify the rights contained in the convention.
As far as the Universal Declaration of Human Rights is concerned, the Committee,
before the period of amendments, could specify to us which of these articles in the
Declaration will fall within the concept of civil and political rights, not for the purpose
of including these in the proposed constitutional article, but to give the sense of the
Commission as to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no definite reply to the
question of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and
political rights that we felt must be envisioned initially by this provision freedom
from political detention and arrest prevention of torture, right to fair and public trials,
as well as crimes involving disappearance, salvagings, hamlettings and collective
violations. So, it is limited to politically related crimes precisely to protect the civil and
political rights of a specific group of individuals, and therefore, we are not opening it
up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the socalled civil or political rights as contained in the Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.
MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific
article therein, but only to those that pertain to the civil and politically related, as we
understand it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction
between civil and social rights.
MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights-the rights of
labor to organize, the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the committee
to those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more abused
and oppressed. Another reason is, the cases involved are very delicate torture,
salvaging, picking up without any warrant of arrest, massacre and the persons
who are allegedly guilty are people in power like politicians, men in the military and
big shots. Therefore, this Human Rights Commission must be independent.
I would like very much to emphasize how much we need this commission, especially
for the little Filipino, the little individual who needs this kind of help and cannot get
it. And I think we should concentrate only on civil and political violations because if
we open this to land, housing and health, we will have no place to go again and we
will not receive any response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision
empowering the Commission on Human Rights to "investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and political rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property, marriage, equal
protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights
are rights appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights capable of being
enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution,
unreasonable searches and seizures, and imprisonment for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the
establishment or administration of government, the right of suffrage, the right to hold public office, the
right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of
government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that
the delegates envisioned a Commission on Human Rights that would focus its attention to the more
severe cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the
"(1) protection of rights of political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6)
other crimes committed against the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless,
significant for the tone it has set. In any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They
have thus seen it fit to resolve, instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission, taking into account its
recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be demolished are the
stalls, sari-saristores and carinderia, as well as temporary shanties, erected by private respondents
on a land which is planned to be developed into a "People's Park". More than that, the land adjoins
the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national
highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is
indeed paradoxical that a right which is claimed to have been violated is one that cannot, in the first
place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude
that the order for the demolition of the stalls, sari-sari stores and carinderia of the private
respondents can fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines
and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to
cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite
for contempt, however, should be understood to apply only to violations of its adopted operational
guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the
power to cite for contempt could be exercised against persons who refuse to cooperate with the said
body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in
pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in
the instance before us, however, is not investigatorial in character but prescinds from an adjudicative
power that it does not possess. In Export Processing Zone Authority vs. Commission on Human
Rights, 36 the Court, speaking through Madame Justice Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive measures
and legal aid services to the underprivileged whose human rights have been violated
or need protection" may not be construed to confer jurisdiction on the Commission to
issue a restraining order or writ of injunction for, it that were the intention, the

Constitution would have expressly said so. "Jurisdiction is conferred only by the
Constitution or by law". It is never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary
injunction) which the CHR may seek from proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR itself has no jurisdiction
to issue the writ, for a writ of preliminary injunction may only be issued "by the judge
of any court in which the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an
ancillary remedy. It is available only in a pending principal action, for the preservation
or protection of the rights and interests of a party thereto, and for no other purpose."
(footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to
the vendors affected by the demolition is not an appropriate issue in the instant petition. Not only is
there lack of locus standion the part of the petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate administrative agencies concerned to initially
consider.
The public respondent explains that this petition for prohibition filed by the petitioners has become
moot and academic since the case before it (CHR Case No. 90-1580) has already been fully heard,
and that the matter is merely awaiting final resolution. It is true that prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its
resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to also
prevent CHR from precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights
is hereby prohibited from further proceeding with CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining order heretofore issued by this Court is made
permanent. No costs.
SO ORDERED.

G.R. No. 82544 June 28, 1988

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen
also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission
Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended
after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted
for self-deportation and have left the country. One was released for lack of evidence; another was
charged not for being a pedophile but for working without a valid working visa. Thus, of the original
twenty two (22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There
were also posters and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.

On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable
aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The
"Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are inimical to public morals, public health and
public safety as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code
On the same date, the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their
health was being seriously affected by their continuous detention. Upon recommendation of the
Board of Commissioners for their provisional release, respondent ordered the CID doctor to examine
petitioners, who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied
considering the certification by the CID physician that petitioners were healthy. To avoid congestion,
respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer
was deferred pending trial due to the difficulty of transporting them to and from the CID where trial
was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally
agreed to a self-deportation" and praying that he be "provisionally released for at least 15 days and
placed under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988,
the Board of Special Inquiry III allowed provisional release of five (5) days only under certain
conditions. However, it appears that on the same date that the aforesaid Manifestation/ Motion was
filed, Harvey and his co-petitioners had already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus.
A Return of the Writ was filed by the Solicitor General and the Court heard the case on oral
argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply was
filed by the Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the
Revised Administrative Code, which legally clothes the Commissioner with any authority to arrest
and detain petitioners pending determination of the existence of a probable cause leading to an
administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were not clothed with valid Warrants of arrest, search
and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected pedophiles,
are not valid legal grounds for their arrest and detention unless they are caught in the act. They
further allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a
pedophile.

We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor
General.
There can be no question that the right against unreasonable searches and seizures guaranteed by
Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to "such facts and circumstances antecedent
to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on
them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil.
33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by
a peace officer or even a private person (1) when such person has committed, actually committing,
or is attempting to commit an offense in his presence; and (2) when an offense has, in fact, been
committed and he has personal knowledge of facts indicating that the person to be arrested has
committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close
surveillance for three (3) months during which period their activities were monitored. The existence
of probable cause justified the arrest and the seizure of the photo negatives, photographs and
posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs.
Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a lawful arrest
and, are therefore, admissible in evidence (Section 12, Rule 126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records
show that formal deportation charges have been filed against them, as undesirable aliens, on 4
March 1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section
37, 45 and 46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is
presently being conducted by a Board of Special Inquiry. The restraint against their persons,
therefore, has become legal. The Writ has served its purpose. The process of the law is being
followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a person's detention
was later made by virtue of a judicial order in relation to criminal cases subsequently filed against the
detainee, his petition for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014,
April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will not be
granted when the confinement is or has become legal, although such confinement was illegal at the
beginning" (Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were
found with young boys in their respective rooms, the ones with John Sherman being naked. Under
those circumstances the CID agents had reasonable grounds to believe that petitioners had
committed "pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing
Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are the
preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor
General's Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is
behavior offensive to public morals and violative of the declared policy of the State to promote and
protect the physical, moral, spiritual, and social well-being of our youth (Article II, Section 13, 1987
Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a
waiver of any irregularity attending their arrest and estops them from questioning its validity (Callanta

v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770,
January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration and Deportation
after a determination by the Board of Commissioners of the existence of the ground
for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and indivisible
nature of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be
defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA
562). The specific constraints in both the 1935 1 and 1987 2 Constitutions, which are substantially
Identical, contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the other
hand, are administrative in character. An order of deportation is never construed as a punishment. It is
preventive, not a penal process. It need not be conducted strictly in accordance with ordinary Court
proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal
action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it
being merely the return to his country of an alien who has broken the conditions upon
which he could continue to reside within our borders (U.S. vs. De los Santos, 33
Phil., 397). The deportation proceedings are administrative in character, (Kessler vs.
Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in
accordance with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155).
It is essential, however, that the warrant of arrest shall give the alien sufficient
information about the charges against him, relating the facts relied upon. (U.S. vs.
Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the assistance
of counsel, if he so desires, before unprejudiced investigators (Strench vs. Pedaris,
55 F. [2d], 597; Ex parte Jew You On, 16 F. [2d], 153). However, all the strict rules of
evidence governing judicial controversies do not need to be observed; only such as
are fumdamental and essential like the right of cross-examination. (U.S. vs. Hughes,
104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay evidence may even be
admitted, provided the alien is given the opportunity to explain or rebut it (Morrell vs.
Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre
81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and
before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the
Constitution" (referring to the 1935 Constitution) 3 is not invocable herein. Respondent Commissioner's
Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear and show cause why they
should not be deported. They were issued specifically "for violation of Sections 37, 45 and 46 of the
Immigration Act and Section 69 of the Revised Administrative Code." Before that, deportation proceedings

had been commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step
preliminary to their possible deportation.

Section 37 of the Immigration Law, which empowers the Commissioner of

Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated the
condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment
of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be
no "truncated" recourse to both judicial and administrative warrants in a single deportation
proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether
the arrest of an individual may be ordered by any authority other than a judge if the purpose is
merely to determine the existence of a probable cause, leading to an administrative investigation."
For, as heretofore stated, probable cause had already been shown to exist before the warrants of
arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be arrested
and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if
desired, and that the charge be substantiated by competent evidence. Thus, Section 69 of the
Revised Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing
in the Philippines shall not be deported, expelled, or excluded from said Islands or
repatriated to his own country by the President of the Philippines except upon prior
investigation, conducted by said Executive or his authorized agent, of the ground
upon which such action is contemplated. In such a case the person concerned shall
be informed of the charge or charges against him and he shall be allowed not less
than 3 days for the preparation of his defense. He shall also have the right to be
heard by himself or counsel, to produce witnesses in his own behalf, and to crossexamine the opposing witnesses.

The denial by respondent Commissioner of petitioners' release on bail, also challenged by them,
was in order because in deportation proceedings, the right to bail is not a matter of right but a matter
of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of
the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation
proceeding may be released under bond or under such other conditions as may be imposed by the
Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant
of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the
power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February
28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code
guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs.
Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of
a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said
proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds
as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682
[1948]). The power to deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against
undesirable aliens whose continued presence in the country is found to be injurious to the public
good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]).
Particularly so in this case where the State has expressly committed itself to defend the tight of
children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development (Article XV, Section 3[2]). Respondent
Commissioner of Immigration and Deportation, in instituting deportation proceedings against
petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
SO ORDERED.

G.R. No. 160922

February 27, 2006

JEANY-VI G. KIANI, Petitioner,

vs.
THE BUREAU OF IMMIGRATION and DEPORTATION (BID); EDGARDO CABRERA, ELISEO
EXCONDE and JOSE VALE, JR., Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari for the nullification of the decision1 of the Court of Appeals
(CA) in CA-G.R. No. 74484, dismissing the appeal of Jeany-Vi G. Kiani, which assailed the Order of
the Regional Trial Court (RTC) of Manila, Branch 8, in Special Proceedings (Sp. Proc.) No. 02103935, dismissing her Petition for Habeas Corpus.
On June 19, 2002, Javed Kiani, a British national but a Pakistani by birth2 reported to the Rodriguez,
Rizal Police Station that his friends, Iqbal Singh and Balbir Singh, had been forcibly taken by four (4)
armed men from their residence at Balita, Rodriguez, Rizal. 3 A couple of days later, then
Commissioner Andrea D. Domingo of the Bureau of Immigration and Deportation (BID) issued
Mission Order No. ADD-02-203 based on Executive Order No. 287 of former President Joseph
Estrada. In said Order, appropriate officers of the Bureau were directed to conduct
verification/validation of the admission status and activities of Javed Kiani, and, if found to have
violated the Philippine Immigration Act of 1940, as amended, to immediately place him under
arrest.4 Per records of the BID, Javed Kiani was married to a Filipina, Jeany-Vi Kiani, on July 27,
1988. He was admitted as an immigrant and was issued a permanent resident visa on March 17,
1993.5
A week later, on June 27, 2002, Javed Kiani was arrested at Felicidad Village, Montalban, Rizal. The
arresting officers, Eduardo Cabrera, Eliseo Exconde and Jose Vale, Jr., operatives of the Bureau of
Intelligence of the BID, relied on information from Iqbal and Balbir Singh, who pointed to Javed Kiani
as the one who had furnished them with fake Alien Certificate Registration (ACR) and Immigrant
Certificate Registration (ICR). Apparently, the forms used were not official BID forms. 6
On July 1, 2002, the BID Prosecutor filed a Charge Sheet7 against "Javed Kiani alias Ahmad Singh"
before the Board of Special Inquiry (BSI) for violation of the Philippine Immigration Act of 1940, as
amended, particularly Section 37(a)(7) and Section 45 thereof. The case was docketed as D.C. No.
ADD-02-080. The Charge Sheet reads:
Records show that the above-named subject was arrested on June 27, 2002 by Bureaus
Intelligence operatives at Felicidad Village, Montalban, Rizal, pursuant to Mission Order No. ADD02-203, dated June 20, 2002.
Records also show that subject national was positively identified by Indian nationals Balbir Singh
and Iqbal Singh when they were arrested by the same operatives on June 18, 2002 as the person
who gave them spurious immigration documents and as their protector evidenced by copies of the
ACRs and ICRs of Balbir and Iqbal Singh, which were certified by Mr. Reynaldo Joson as "fake."
Additionally, Mr. Joson certified that the forms used in the forgery/falsification are not official forms of
this Bureau.
Contrary to law.8

On the same day, July 1, 2002, the Board of Commissioners (BOC) conducted a summary
proceeding and issued a Summary Deportation Order revoking the visa issued to Javed Kiani. The
Order reads in part:
Considering the seriousness of the charge/s and the evidence in support thereof, respondent, whose
Temporary Residence Visa is hereby ordered cancelled and revoked, is hereby ordered summarily
deported to his country of origin, subject to PNP, Court and NBI clearances and payment of an
administrative fine in the amount ofP50,000.00.9
The next day, July 2, 2002, Javed Kianis wife, Jeany-Vi, filed a Petition for a Writ of Habeas
Corpus10 for and in behalf of her husband before the RTC of Manila, naming the BID and its
intelligence officers as Respondents. She prayed that the court issue a writ of habeas corpus
directing respondents to produce the person of Javed Kiani before it "in the soonest time possible
and to show the cause or legal justification for the latters detention and imprisonment, if any; and for
such other or further reliefs as may be deemed just and equitable under the premises." She further
alleged that her husband had intervened in the arrest of Iqbal and Balbir Singh, and that the
arresting officers resented such intervention. She insisted that the arrest and detention of her
husband were bereft of factual and legal basis, since at the time, no deportation order had yet been
issued against him. Citing the ruling of this Court in Board of Commissioners v. Dela Rosa, 11 she
alleged that the Mission Order issued by the Immigration Commissioner was void. The case was
docketed as Sp. Proc. No. 02-103935.12 Javed Kiani had been detained at the BID Detention Center,
Camp Bagong Diwa, Taguig, Metro Manila since July 3, 2002. 13
On July 18, 2002, the RTC issued an Order14 granting bail for Javed Kiani on a bond of P50,000.00,
and ordered respondent BID Intelligence Officers to file their return on the writ. The respondents
complied, and alleged in their return that Javed Kiani had already been charged before the BOC and
ordered deported; hence, the petition had become moot and academic. They refused to release
Kiani although the bond had already been posted. 15Instead, the respondents, through the Office of
the Solicitor General (OSG), filed an Omnibus Motion16 for the reconsideration of the Order on the
following grounds: (1) under Section 37(9)(e) of Commonwealth Act 613, as amended, it is the
Commissioner of Immigration, and not the court, who has authority to grant bail in a deportation
proceeding; (2) the court has no authority to grant the petition considering that Javed Kiani was
lawfully charged with violation of the Philippine Immigration Act of 1940, as amended, before the
BSI; and (3) the BOC has subsequently issued a Summary Deportation Order.
On October 28, 2002, the RTC issued an Order 17 granting the motion and setting aside its July 18,
2002 Order. In dismissing the petition, it ruled that Jeany-Vi was barred from questioning the legality
of the arrest and detention of her husband, following the filing of the Charge Sheet with the BSI; as
such, there was no justification for the issuance of a writ of habeas corpus. It declared that, as
gleaned from the return of the writ filed by the respondents, Javed Kiani was lawfully charged with
violation of the Philippine Immigration Act of 1940, as amended; hence, the Summary Deportation
Order issued by the BOC was valid.
The RTC also ruled that the proper remedy of Javed Kiani from the Summary Deportation Order of
the BOC was to file a petition for review with the CA under Rule 43 of the Rules of Court (and not a
petition for a writ of habeas corpus before it), as it had no jurisdiction to take cognizance of and
reverse the Summary Deportation Order issued by the BOC.
Jeany-Vi appealed the RTCs Order of July 18, 2002 to the CA, in which she raised the following
issues:

A. WHETHER OR NOT THE ARREST OF JAVED KIANI ON 27 JUNE 2002 AND HIS
SUBSEQUENT DETENTION BY THE RESPONDENTS-APPELLEES WERE VALID AND/OR
LEGAL.
B. WHETHER OR NOT THE SUPPOSED ISSUANCE OF A SUMMARY DEPORTATION ORDER
AGAINST JAVED KIANI HAS THE EFFECT OF LEGALIZING AND/OR VALIDATING HIS
CONTINUED DETENTION, THEREBY RENDERING THE HABEAS CORPUS PETITION
DISMISSIBLE.18
On May 8, 2003 the CA rendered judgment dismissing the appeal.19 The CA declared that a Petition
for a Writ of Habeas Corpus can no longer be allowed since the party sought to be released had
been charged before the BSI. Assuming that Javed Kianis detention or his arrest was illegal, any
incipient infirmity thereon was cured by the filing of the Charge Sheet against him. The appellate
court cited the ruling of this Court in Velasco v. Court of Appeals.20 It likewise affirmed the ruling of
the RTC that it had no jurisdiction to take cognizance of and reverse the Summary Deportation
Order of the BOC, that the remedy of petitioner from the Summary Deportation Order of the BOC
was to file a petition for review with the CA under Rule 43 of the 1997 Rules of Civil Procedure, and
that her failure to do so rendered said Order final and executory.
Jeany-Vi received a copy of the CA Decision on May 22, 2003, and filed a Motion for
Reconsideration thereof on June 6, 2003. She alleged that since the Summary Deportation Order of
the BOC had not yet been promulgated by the BSI, the period to appeal was yet to commence, and
as such, said order could not become final and executory. Even assuming that such order had
become final and executory, her husband was entitled to a writ of habeas corpus since he was
deprived of his right to due process.
On November 21, 2003, the appellate court resolved to deny the motion. 21 Jeany-Vi received a copy
of the Resolution on December 1, 2003.
On January 15, 2004, petitioner filed the instant petition for review on certiorari under Rule 45 of the
Revised Rules of Court, alleging that:
A. THE COURT OF APPEALS ERRED IN FAILING TO NULLIFY AND TO DECLARE AS
ILLEGAL THE ACTUAL ARREST AND SUBSEQUENT DETENTION OF JAVED KIANI.
B. THE COURT OF APPEALS ERRED IN FAILING TO DECLARE AS NULL AND VOID AB
INITIO THE PUTATIVE SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI.
C. THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE SUMMARY
DEPORTATION ORDER AGAINST JAVED KIANI HAS ALREADY BECOME FINAL AND
EXECUTORY.
D. THE COURT OF APPEALS ERRED IN CONCLUDING THAT HABEAS CORPUS IS NOT
THE CORRECT OR PROPER REMEDY AVAILABLE TO THE HEREIN PETITIONER.22
Petitioner avers that the Mission Order issued by the Immigration Commissioner for the investigation
and arrest of her husband, Javed Kiani, is null and void. She points out that when said Order was
issued, the BOC had not yet made a determination as to the existence of a lawful ground for his
deportation. She further avers that the Immigration Commissioner has no power to issue a Mission
Order or Warrant of Arrest solely for the purpose of investigation, and before a final order for
deportation is issued by the BOC. She insists that an order of arrest is proper only if the BOC has

already issued an Order of deportation. She cites the rulings of this Court in Qua Chee Gan v.
Deportation Board,23 Ang Ngo Chiong v. Galang,24 and Board of Commissioners v. Dela Rosa.25
Petitioner further maintains that the filing of the Charge Sheet against Javed Kiani by the BOC did
not render the issue of the illegality of arrest and detention moot and academic. She asserts that
there is no factual and legal basis for the deportation of her husband because he had been issued a
permanent visa and his passport is yet to expire. She avers that a warrant for the arrest of her
husband may be issued only after a Summary Deportation Order shall have become final and
executory. Considering that there was no showing in the records that said Order had already been
promulgated by the BSI, it could not have become final and executory. She avers that the ruling of
this Court in Velasco v. Court of Appeals26 is not applicable in this case.
In its Comment on the petition filed on December 10, 2004, the Office of the Solicitor General (OSG)
avers that it agrees with the ruling of the CA and prays that it be affirmed. Citing the ruling of this
Court in Dwikarna v. Domingo,27 the OSG posits that the remedy of petitioner from the Summary
Deportation Order of the BOC was to appeal to the CA via a petition for review under Rule 43 of the
Revised Rules of Court. It maintains that it was inappropriate for petitioner to assail the arrest and
detention of her husband after the filing of the Charge Sheet with the BSI.
The OSG also alleges that Javed Kiani had filed an Omnibus Motion Ad Cautelam 28 dated March 19,
2004 in the BID, presumably with the BOC, wherein he prayed that the Summary Deportation Order
issued by the BOC against him be set aside, and that he be released in the meantime. The OSG
also asserts that in said motion, Javed Kiani alleged that his arrest and detention was illegal
because there had been as yet no determination by the BOC of any ground for his deportation; in
effect, he pursued the same reliefs he seeks from this Court in his motion with the BOC, that is, to
declare as illegal his continued detention and order his release. The OSG avers that this is a classic
example of forum shopping which is prohibited under the Rules.
In reply, petitioner asserts that during the pendency of this case, Immigration Commissioner Alipio F.
Fernandez, Jr. granted her husbands Omnibus Motion Ad Cautelam in an Order 29 dated June 22,
2004, and ordered his provisional release on a cash bond of P50,000.00. The Commissioner also
declared that the Summary Deportation Order against her husband had been improvidently issued,
and ruled that there was no factual and legal basis for his summary deportation. Moreover, Javed
Kiani was deprived of his right to due process when the Order was issued on the same day the
Charge Sheet was filed with the BSI.
The Court is posed to resolve the following issues: (1) whether petitioner engaged in forum
shopping; and (2) whether the CA erred in (a) holding that the Petition for a Writ of Habeas Corpus
before the RTC was not the proper remedy of petitioner; (b) upholding the validity of the Summary
Deportation Order issued by the BOC; and (c) declaring that such Order had become final and
executory.
On the first issue, we agree with the contention of the OSG that the petitioner indulged in forum
shopping. Forum shopping is the institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make a favorable disposition.
Section 6, Rule 43 of the Revised Rules of Court provides that a petition for review on certiorari must
contain a sworn certification against forum shopping as provided in the last paragraph of Section 2,
Rule 42 of said Rules, to wit:
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court
of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action

or proceeding, he must state the status of the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within five (5) days therefrom.
lawphil.net

Under Section 5, Rule 45 of said Rules, the failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the dismissal of the petition.
In Balite v. Court of Appeals,30 the Court held that there is forum shopping when a party seeks to
obtain remedies in an action in one court, which had already been solicited, and in other courts and
other proceedings in other tribunals. While a party may avail of the remedies prescribed by the Rules
of Court, such party is not free to resort to them simultaneously or at his/her pleasure or caprice. A
party should not be allowed to present simultaneous remedies in two different forums, for it degrades
and wreaks havoc to the rule on orderly procedure. A party must follow the sequence and
hierarchical order in availing such remedies and not resort to shortcuts in procedure or playing fast
and loose with the said rules. Forum shopping, an act of malpractice, is considered as trifling with
the courts and abusing their processes. It is improper conduct and degrades the administration of
justice.
In this case, petitioner seeks not only the reversal of the Order of the RTC dismissing her Petition for
a Writ of Habeas Corpus filed in behalf of her husband (where it was also declared that he had been
legally deported), as well as the decision of the CA affirming the RTCs Order; she also prays that
the Court render judgment nullifying the Summary Deportation Order of the BOC and order her
husbands release from detention. However, Javed Kiani himself, during the pendency of this case,
filed an Omnibus Motion Ad Cautelam with the BID, seeking the same reliefs, which his wife prayed
for in this case. By filing said motion, Javed Kiani sought to preempt the decision of this Court.
Petitioner and her husband even failed to inform the Court of the filing of such motion, and did so
only after the OSG had already informed the Court of such petition, and after petitioner had been
ordered to reply to the Comment of the OSG.
Petitioner and her husband were represented by the same law firm, the Cruz Cruz and Neria Law
Offices. The instant petition and said motion were signed by the same lawyer, Atty. Marlon Alexandre
C. Cruz. That the instant petition was filed by Jeany-Vi Kiani while the Omnibus Motion was filed by
Javed Kiani himself is of no moment; after all, the petition was filed for and in behalf of the latter, who
is the real party-in-interest.31 In effect, the Petition for Writ of Habeas Corpus was filed by him, as the
beneficiary, through his wife as his representative. Worse, the Immigration Commissioner took
cognizance of and granted the same, despite the pendency of the instant petition, thereby
preempting the ruling of this Court.
The Immigration Commissioner and Atty. Marlon Alexandre C. Cruz ought to be reprimanded for their
acts.
On the merits of the petition, we find and so rule that the CA acted in accord with jurisprudence when
it affirmed the assailed Order of the RTC dismissing the Petition for Habeas Corpus. As the Court
held in Caballes v. Court of Appeals,32
Habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial courts
function. It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to
investigate and consider questions of error that might be raised relating to procedure or on the
merits. The inquiry in a habeas corpus proceeding is addressed to the question of whether the
proceedings and the assailed order are, for any reason, null and void. The writ is not ordinarily
granted where the law

provides for other remedies in the regular course, and in the absence of exceptional circumstances.
Moreover, habeas corpus should not be granted in advance of trial. The orderly course of trial must
be pursued and the usual remedies exhausted before resorting to the writ where exceptional
circumstances are extant. In another case, it was held that habeas corpus cannot be issued as a writ
of error or as a means of reviewing errors of law and irregularities not involving the questions of
jurisdiction occurring during the course of the trial, subject to the caveat that constitutional
safeguards of human life and liberty must be preserved, and not destroyed. It has also been held
that where restraint is under legal process, mere errors and irregularities, which do not render the
proceedings void, are not grounds for relief by habeas corpus because in such cases, the restraint is
not illegal.33
In this case, when petitioner filed her Petition for Habeas Corpus with the RTC in behalf of her
husband, a Charge Sheet had already been filed against him for violation of Section 37(a)(7) and
Section 45 of the Philippine Immigration Act of 1940, as amended. The filing of the Charge Sheet
before the BSI cured whatever irregularities or infirmities were attendant to his arrest. The remedy of
petitioner was to file a motion for the dismissal of the Charge Sheet and the Mission Order of the
Immigration Commissioner, not a petition for a writ of habeas corpus before the RTC. The RTC had
no authority to nullify the Mission Order issued by the Immigration Commissioner, much less set
aside the arrest of Javed Kiani. As held by this Court in Commissioner Rodriguez v. Judge
Bonifacio:34
Be that as it may, there was a valid judicial process justifying Ma Jings detention even before
respondent judge rendered his decision as shown by the Return of the Writ which averred, among
others, that a Charge Sheet was filed against Ma Jing. Even granting that the arrest of Ma Jing was
initially illegal, the filing of the Charge Sheet cured whatever incipient infirmity there was in her
arrest. Respondent judge therefore had no authority to release the party who was thus committed.
Section 4, Rule 102 of the Rules of Court provides:
SEC. 4. When writ not allowed or discharge authorized. If it appears that the person to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge; or by
virtue of a judgment or order of a court of record, and that court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment.
Once a person detained is duly charged in court, he may no longer question his detention through a
petition for issuance of a writ of habeas corpus. His remedy would be to quash the information
and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the
party sought to be released had been charged before any court. The term "court" includes quasijudicial bodies like the Deportation Board of the Bureau of Immigration. 35
The CA acted in accord with jurisprudence when it affirmed the ruling of the RTC declaring that it had
no jurisdiction over petitioners plea to set aside the Summary Deportation Order issued by the BOC
against her husband Javed Kiani. Under Section 8, Chapter 3, Title I, Book III of Executive Order No.
292, the power to deport aliens is vested on the President of the Philippines, subject to the
requirements of due process. The Immigration Commissioner is vested with authority to deport
aliens under Section 37 of the Philippine Immigration Act of 1940, as amended. Thus, a party
aggrieved by a Deportation Order issued by the BOC is proscribed from assailing said Order in the
RTC even via a petition for a writ of habeas corpus. Conformably with ruling of the Court in Domingo

v. Scheer,36 such party may file a motion for the reconsideration thereof before the BOC. The Court
ruled therein that "there is no law or rule which provides that a Summary Deportation Order issued
by the BOC in the exercise of its authority becomes final after one year from its issuance, or that the
aggrieved party is barred from filing a motion for a reconsideration of any order or decision of the
BOC." The Court, likewise, declared that in deportation proceedings, the Rules of Court may be
applied in a suppletory manner and that the aggrieved party may file a motion for reconsideration of
a decision or final order under Rule 37 of said Rules.37
In case such motion for reconsideration is denied by the BOC, the aggrieved party may appeal to the
Secretary of Justice38 and, if the latter denies the appeal, to the Office of the President of the
Philippines. The party may also choose to file a petition for certiorari with the CA under Rule 65 of
the Rules of Court, on the ground that the Secretary of Justice acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in dismissing the appeal, the remedy of appeal not being
adequate and speedy remedy.39 In case the Secretary of Justice dismisses the appeal, the aggrieved
party may resort to filing a petition for review under Rule 43 of the Rules of Court, as amended. 40
In this case, the petitioner did not file any motion with the BOC for reconsideration of the Summary
Deportation Order or appeal therefrom; neither did she appeal to the Secretary of Justice or to the
Office of the President or file a petition for certiorari under Rule 65.
We note that under Section 3, Rule XIII41 of the Rules of Procedure to Govern Deportation
Proceedings, the decision of the BOC shall be returned to the BSI for promulgation, and shall
become final and executory after thirty (30) days from promulgation unless within such period, the
President of the Philippines shall order the contrary.
This rule, however, is not applicable in this case. What the petitioner assailed before the RTC was a
Summary Deportation Order of the BOC, not a BOC decision based on the recommendation of the
BSI after due hearing as mandated by Rule IX of the said Rules of Procedure.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the
petitioner.
SO ORDERED.

BORACAY FOUNDATION, INC.,

Petitioner,

G.R. No. 196870

Present:

- versus -

THE PROVINCE OF AKLAN,

REPRESENTED BY GOVERNOR
CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION
AUTHORITY, AND THE DENR-EMB
(REGION VI),
Respondents.

CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,*
SERENO,
REYES, and
PERLAS-BERNABE, JJ.
Promulgated:
June 26, 2012

x--------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in
the Constitution and pertinent laws, such as the protection of the environment, the empowerment
of the local government units, the promotion of tourism, and the encouragement of the
participation of the private sector. The Court seeks to reconcile the respective roles, duties and
responsibilities of the petitioner and respondents in achieving these shared goals within the
context of our Constitution, laws and regulations.
Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of
a continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure
for Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic
corporation. Its primary purpose is to foster a united, concerted and environment-conscious
development of Boracay Island, thereby preserving and maintaining its culture, natural beauty
and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime
tourist destination in Asia and the whole world.[1] It counts among its members at least sixty (60)
owners and representatives of resorts, hotels, restaurants, and similar institutions; at least five
community organizations; and several environmentally-conscious residents and advocates.[2]
Respondent Province of Aklan (respondent Province) is a political subdivision of the government
created pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the
Provincial Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public
Estates Authority (PEA), is a government entity created by Presidential Decree No. 1084,
[3]
which states that one of the purposes for which respondent PRA was created was to reclaim
land, including foreshore and submerged areas. PEA eventually became the lead agency
primarily responsible for all reclamation projects in the country under Executive Order No. 525,
series of 1979. In June 2006, the President of the Philippines issued Executive Order No. 543,
delegating the power to approve reclamation projects to PRA through its governing Board,
subject to compliance with existing laws and rules and further subject to the condition that
reclamation contracts to be executed with any person or entity (must) go through public bidding.
[4]

Respondent Department of Environment and Natural Resources Environmental Management

Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government
agency in the Western Visayas Region authorized to issue environmental compliance certificates
regarding projects that require the environments protection and management in the region.[5]
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the
Philippines and one of the countrys most popular tourist destinations, was declared a tourist zone
and marine reserve in 1973 under Presidential Proclamation No. 1801.[6] The island comprises
the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the
province of Aklan.[7]
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are
the product of the unique ecosystem dynamics of the area. The island itself is known to

come from the uplifted remnants of an ancient reef platform. Its beaches, the sandy land
strip between the water and the area currently occupied by numerous establishments, is
the primary draw for domestic and international tourists for its color, texture and other
unique characteristics. Needless to state, it is the premier domestic and international
tourist destination in the Philippines.[8]

More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger
Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding
Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in
Boracay. Respondent Province operates both ports to provide structural facilities suited for
locals, tourists and guests and to provide safety and security measures.[9]
In 2005, Boracay 2010 Summit was held and participated in by representatives from
national government agencies, local government units (LGUs), and the private sector. Petitioner
was one of the organizers and participants thereto. The Summit aimed to re-establish a common
vision of all stakeholders to ensure the conservation, restoration, and preservation of Boracay
Island and to develop an action plan that [would allow] all sectors to work in concert among and
with each other for the long term benefit and sustainability of the island and the community.
[10]
The Summit yielded a Terminal Report[11]stating that the participants had shared their dream
of having world-class land, water and air infrastructure, as well as given their observations that
government support was lacking, infrastructure was poor, and, more importantly, the influx of
tourists to Boracay was increasing. The Report showed that there was a need to expand the port
facilities at Caticlan due to congestion in the holding area of the existing port, caused by
inadequate facilities, thus tourists suffered long queues while waiting for the boat ride going to
the island.[12]
Respondent Province claimed that tourist arrivals to Boracay reached approximately
649,559 in 2009 and 779,666 in 2010, and this was expected to reach a record of 1 million tourist
arrivals in the years to come. Thus, respondent Province conceptualized the expansion of the port
facilities at Barangay Caticlan.[13]
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13,
s. 2008 on April 25, 2008 stating that it had learned that respondent Province had filed an
application with the DENR for a foreshore lease of areas along the shorelines of Barangay
Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore
lease practically covered almost all the coastlines of said barangay, thereby technically
diminishing its territorial jurisdiction, once granted, and depriving its constituents of their
statutory right of preference in the development and utilization of the natural resources within its
jurisdiction. The resolution further stated that respondent Province did not conduct any
consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore
lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.[15]
[14]

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province

approved Resolution No. 2008-369,[16] formally authorizing Governor Marquez to enter into
negotiations towards the possibility of effecting self-liquidating and income-producing

development and livelihood projects to be financed through bonds, debentures, securities,

collaterals, notes or other obligations as provided under Section 299 of the Local Government
Code, with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan
foreshore for commercial purposes.[17] This step was taken as respondent Provinces existing jetty
port and passenger terminal was funded through bond flotation, which was successfully
redeemed and paid ahead of the target date. This was allegedly cited as one of the LGUs Best
Practices wherein respondent Province was given the appropriate commendation.[18]
Respondent Province included the proposed expansion of the port facilities at
Barangay Caticlan in its 2009 Annual Investment Plan,[19] envisioned as its project site the area
adjacent to the existing jetty port, and identified additional areas along the coastline of Barangay
Caticlan as the site for future project expansion.[20]
Governor Marquez sent a letter to respondent PRA on March 12, 2009[21] expressing the interest
of respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay
Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the
necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the
Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old
Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (the
Marina Project), in Malay, Aklan.[22]
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province
issued Resolution No. 2009110,[23] which authorized Governor Marquez to file an application to
reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which
focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of
the old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for
its future plans the construction of commercial building and wellness center. The financial
component of the said study was Two Hundred Sixty Million Pesos (P260,000,000.00). Its
suggested financing scheme was bond flotation.[24]
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong
opposition to the intended foreshore lease application, through Resolution No. 044,[25] approved
on July 22, 2009, manifesting therein that respondent Provinces foreshore lease application was
for business enterprise purposes for its benefit, at the expense of the local government of Malay,
which by statutory provisions was the rightful entity to develop, utilize and reap benefits from
the natural resources found within its jurisdiction.[26]
In August 2009, a Preliminary Geohazard Assessment[27] for the enhancement/expansion
of the existing Caticlan Jetty Port and Passenger Terminal through beach zone restoration and
Protective Marina Developments in Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and

Monitoring Program (EPRMP)[28] to DENR-EMB RVI, which he had attached to his
letter[29] dated September 19, 2009, as an initial step for securing an Environmental Compliance
Certificate (ECC). The letter reads in part:
With the project expected to start its construction implementation next
month, the province hereby assures your good office that it will give preferential
attention to and shall comply with whatever comments that you may have on this
EPRMP.[30] (Emphasis added.)
Respondent Province was then authorized to issue Caticlan Super Marina Bonds for the
purpose of funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building,
and the reclamation of a portion of the foreshore lease area for commercial purposes in Malay,
Aklan through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said
ordinance authorized Governor Marquez to negotiate, sign and execute agreements in relation to
the issuance of the Caticlan Super Marina Bonds in the amount not exceeding P260,000,000.00.
[31]

Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial

Ordinance No. 2009-015[32] on October 1, 2009, amending Provincial Ordinance No. 2009-013,
authorizing the bond flotation of the Province of Aklan through Governor Marquez to fund the
Marina Project and appropriate the entire proceeds of said bonds for the project, and further
authorizing Governor Marquez to negotiate, sign and execute contracts or agreements pertinent
to the transaction.[33]
Within the same month of October 2009, respondent Province deliberated on the possible
expansion from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in
order to maximize the utilization of its resources and as a response to the findings of the
Preliminary Geohazard Assessment study which showed that the recession and retreat of the
shoreline caused by coastal erosion and scouring should be the first major concern in the project
site and nearby coastal area. The study likewise indicated the vulnerability of the coastal zone
within the proposed project site and the nearby coastal area due to the effects of sea level rise and
climate change which will greatly affect the social, economic, and environmental situation of
Caticlan and nearby Malay coastal communities.[34]
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez
wrote:
With our substantial compliance with the requirements under
Administrative Order No. 2007-2 relative to our request to PRA for approval of
the reclamation of the [proposed Beach Zone Restoration and Protection Marine
Development in Barangays Caticlan and Manoc-Manoc] and as a result of our
discussion during the [meeting with the respondent PRA on October 12, 2009],
may we respectfully submit a revised Reclamation Project Description embodying

certain revisions/changes in the size and location of the areas to be reclaimed. x x

x.
On another note, we are pleased to inform your Office that the bond
flotation we have secured with the Local Government Unit Guarantee Corporation
(LGUGC) has been finally approved last October 14, 2009. This will pave the
way for the implementation of said project. Briefly, the Province has been
recognized by the Bureau of Local Government Finance (BLGF) for its capability
to meet its loan obligations. x x x.
With the continued increase of tourists coming to Boracay through
Caticlan, the Province is venturing into such development project with the end in
view of protection and/or restoring certain segments of the shoreline in Barangays
Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported by
experts, has been experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the
reclaimed land for commercial and tourism-related facilities and for other
complementary uses.[35] (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No.
2009-299[36] authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA)
with respondent PRA in the implementation of the Beach Zone Restoration and Protection
Marina Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to
the jetty ports at Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang
Panlalawigan approved the terms and conditions of the necessary agreements for the
implementation of the bond flotation of respondent Province to fund the renovation/rehabilitation
of the existing jetty port by way of enhancement and recovery of the Old Caticlan shoreline
through reclamation of an area of 2.64 hectares in the amount of P260,000,000.00 on December
1, 2009.[37]
Respondent Province gave an initial presentation of the project with consultation to
the Sangguniang Bayan of Malay[38] on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution
No. 4094 and authorized its General Manager/Chief Executive Officer (CEO) to enter into a
MOA with respondent Province for the implementation of the reclamation project.[39]
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-0967100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64
hectares to be done along the Caticlan side beside the existing jetty port.[40]
On May 17, 2010, respondent Province entered into a MOA[41] with respondent PRA.
Under Article III, the Project was described therein as follows:

The proposed Aklan Beach Zone Restoration and Protection Marina

Development Project involves the reclamation and development of
approximately forty (40) hectares of foreshore and offshore areas of the Municipality of
Malay x x x.
The land use development of the reclamation project shall be for commercial,
recreational and institutional and other applicable uses. [42] (Emphases supplied.)

It was at this point that respondent Province deemed it necessary to conduct a series of
what it calls information-education campaigns, which provided the venue for interaction and
dialogue with the public, particularly the Barangay and Municipal officials of the Municipality
of Malay, the residents of Barangay Caticlan and Boracay, the stakeholders, and the nongovernmental organizations (NGOs).The details of the campaign are summarized as follows[43]:
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan; [44]
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal; [45]
c. July 31, 2010 at Barangay Caticlan Plaza;[46]
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor
of Malay Mayor John P. Yap;[47]
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial
Development Council Executive Committee;[48] and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGUMalay and Petitioner.[49]

Petitioner claims that during the public consultation meeting belatedly called by
respondent Province on June 17, 2010, respondent Province presented the Reclamation Project
and only then detailed the actions that it had already undertaken, particularly: the issuance of the
Caticlan Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged
conduct of an Environmental Impact Assessment (EIA) study for the reclamation project; and
the expansion of the project to forty (40) hectares from 2.64 hectares.[50]
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality
reiterated its strong opposition to respondent Provinces project and denied its request for
a favorableendorsement of the Marina Project.[51]
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted
on August 3, 2010, to request respondent PRA not to grant reclamation permit and notice to
proceed to the Marina Project of the [respondent] Provincial Government of Aklan located at
Caticlan, Malay, Aklan.[52]
In a letter[53] dated October 12, 2010, petitioner informed respondent PRA of its
opposition to the reclamation project, primarily for the reason that, based on the opinion of Dr.
Porfirio M. Alio, an expert from the University of the Philippines Marine Science Institute

(UPMSI), which he rendered based on the documents submitted by respondent Province to

obtain the ECC, a full EIA study is required to assess the reclamation projects likelihood of
rendering critical and lasting effect on Boracay considering the proximity in distance,
geographical location, current and wind direction, and many other environmental considerations
in the area. Petitioner noted that said documents had failed to deal with coastal erosion concerns
in Boracay. It also noted that respondent Province failed to comply with certain mandatory
provisions of the Local Government Code, particularly, those requiring the project proponent to
conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its
opposition to the reclamation project to respondent Province, respondent PRA, respondent
DENR-EMB, the National Economic Development Authority Region VI, the Malay
Municipality, and other concerned entities.[54]
Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces
request for a favorable endorsement, as well as the strong opposition manifested both by
Barangay Caticlan and petitioner as an NGO, respondent Province still continued with the
implementation of the Reclamation Project.[55]
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside
Resolution No. 046, s. 2010, of the Municipality of Malay and manifested its support for the
implementation of the aforesaid project through its Resolution No. 2010-022.[56]
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under
its Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010,
informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its
proposed project. Respondent PRA attached to said letter its Evaluation Report dated October 18,
2010.[57]
Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010,
which authorized respondent Province to proceed with phase 1 of the reclamation project, subject
to compliance with the requirements of its Evaluation Report. The reclamation project was
described as:
[A] seafront development involving reclamation of an aggregate area of more or
less, forty (40) hectares in two (2) separate sites both in Malay Municipality, Aklan
Province. Site 1 is in Brgy. Caticlan with a total area of 36.82 hectares and Site 2 in Brgy.
Manoc-Manoc, Boracay Island with a total area of 3.18 hectares. Sites 1 and 2 are on the
opposite sides of Tabon Strait, about 1,200 meters apart. x x x. [58] (Emphases added.)

The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,

addressed the apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and
supported the implementation of the project. Said resolution stated that the apprehensions of
petitioner with regard to the economic, social and political negative impacts of the projects were
mere perceptions and generalities and were not anchored on definite scientific, social and
political studies.
[59]

In the meantime, a study was commissioned by the Philippine Chamber of Commerce

and Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the
assistance of, among others, petitioner. The study was conducted in November 2010 by several
marine biologists/experts from the Marine Environmental Resources Foundation (MERF) of the
UPMSI. The study was intended to determine the potential impact of a reclamation project in the
hydrodynamics of the strait and on the coastal erosion patterns in the southern coast of Boracay
Island and along the coast of Caticlan.[60]
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the
apprehensions of petitioner, respondent Province issued a notice to the contractor on December
1, 2010 to commence with the construction of the project.[61]
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on
Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on Tourism,
Trade, Industry and Commerce, conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.[62] In attendance were Mr. Ariel Abriam,
President of PCCI-Boracay, representatives from the Provincial Government, and Dr. Cesar
Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting
of 2.64 hectares, would only have insignificant effect on the hydrodynamics of the strait
traversing the coastline of Barangay Caticlan and Boracay, hence, there was a distant
possibility that it would affect the Boracay coastline, which includes the famous white-sand
beach of the island.[63]
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No.
2011-065[64] noting the report on the survey of the channel between Caticlan and Boracay
conducted by the UPMSI in relation to the effects of the ongoing reclamation to Boracay
beaches, and stating that Dr. Villanoy had admitted that nowhere in their study was it pointed out
that there would be an adverse effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region
VI (RDC-VI) on April 16, 2011, it approved and supported the subject project (covering 2.64
hectares) throughRDC-VI Resolution No. VI-26, series of 2011.[65]
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating
that the study conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay
channel is primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare
project of respondent Province would not significantly affect the flow in the channel and would
unlikely impact the Boracay beaches. Based on this, PCCI-Boracay stated that it was not
opposing the 2.64-hectare Caticlan reclamation project on environmental grounds.[66]
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection
Order/Issuance of the Writ of Continuing Mandamus. On June 7, 2011, this Court issued
a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their
respective comments to the petition.[67]

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately
issued an order to the Provincial Engineering Office and the concerned contractor to cease and
desist from conducting any construction activities until further orders from this Court.
The petition is premised on the following grounds:

I.
THE RESPONDENT PROVINCE, PROPONENT OF THE RECLAMATION
PROJECT, FAILED TO COMPLY WITH RELEVANT RULES AND
REGULATIONS IN THE ACQUISITION OF AN ECC.
A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN
ENVIRONMENTALLY CRITICAL AREAS REQUIRING THE
PERFORMANCE OF A FULL, OR PROGRAMMATIC,
ENVIRONMENTAL IMPACT ASSESSMENT.
B. RESPONDENT PROVINCE FAILED TO OBTAIN THE FAVORABLE
ENDORSEMENT OF THE LGU CONCERNED.
C. RESPONDENT PROVINCE FAILED TO CONDUCT THE REQUIRED
CONSULTATION PROCEDURES AS REQUIRED BY THE LOCAL
GOVERNMENT CODE.
D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL
ENVIRONMENTAL IMPACT ASSESSMENT AS REQUIRED BY LAW AND
RELEVANT REGULATIONS.
II.

THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN

CATICLAN AND BORACAY SHALL ADVERSELY AFFECT THE FRAIL
ECOLOGICAL BALANCE OF THE AREA.[68]
Petitioner objects to respondent Provinces classification of the reclamation project as
single instead of co-located, as non-environmentally critical, and as a mere rehabilitation of the
existing jetty port.Petitioner points out that the reclamation project is on two sites (which are
situated on the opposite sides of Tabon Strait, about 1,200 meters apart):
36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island[69]

Phase 1, which was started in December 2010 without the necessary permits,[70] is located
on the Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the

implementation of the project, respondent Province obtained only an ECC to conduct Phase 1,
instead of an ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province
abused and exploited the Revised Procedural Manual for DENR Administrative Order No. 30,
Series of 2003 (DENR DAO 2003-30)[71] relating to the acquisition of an ECC by:
1. Declaring the reclamation project under Group II Projects-Non-ECP
(environmentally critical project) in ECA (environmentally critical area) based on the
type and size of the area, and
2. Failing to declare the reclamation project as a co-located project application which
would have required the Province to submit a Programmatic Environmental Impact
Statement (PEIS)[72] or Programmatic Environmental [Performance] Report
Management Plan (PE[P]RMP).[73] (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification
above is based, which merely requires an Environmental Impact Statement [EIS] for Group II
projects) is patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of
discretion because the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as
Presidential Proclamation No. 2146, clearly indicate that projects in environmentally critical
areas are to be immediately considered environmentally critical. Petitioner complains that
respondent Province applied for an ECC only forPhase 1; hence, unlawfully
evading the requirement that co-located projects[74] within Environmentally Critical Areas
(ECAs) must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the
project as a Non-ECP in an ECA, and as a single project instead of a co-located one. The impact
assessment allegedly performed gives a patently erroneous and wrongly-premised appraisal of
the possible environmental impact of the reclamation project. Petitioner contends that respondent
Provinces choice of classification was designed to avoid a comprehensive impact assessment of
the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately
disregarded its duty to ensure that the environment is protected from harmful developmental
projects because it allegedly performed only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing to note that all the information and
data used by respondent Province in its application for the ECC were all dated and not current, as
data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus,
petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to
Boracay, which involves changes in the structure of the coastline that could contribute to the
changes in the characteristics of the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely
affect the Boracay side and notes that the declared objective of the reclamation project is for the
exploitation of Boracays tourist trade, since the project is intended to enhance support services
thereto. But, petitioner argues, the primary reason for Boracays popularity is its white-sand
beaches which will be negatively affected by the project.

Petitioner alleges that respondent PRA had required respondent Province to obtain the
favorable endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to
the consultation procedures as required by the Local Government Code.[75] Petitioner asserts that
the reclamation project is in violation not only of laws on EIS but also of the Local Government
Code as respondent Province failed to enter into proper consultations with the concerned
LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition
against the project.[76]
Petitioner cites Sections 26 and 27 of the Local Government Code, which require
consultations if the project or program may cause pollution, climactic change, depletion of nonrenewable resources, etc.According to petitioner, respondent Province ignored the LGUs
opposition expressed as early as 2008. Not only that, respondent Province belatedly called for
public consultation meetings on June 17 and July 28, 2010, after an ECC had already been issued
and the MOA between respondents PRA and Province had already been executed. As the
petitioner saw it, these were not consultations but mere project presentations.
Petitioner claims that respondent Province, aided and abetted by respondents PRA and
DENR-EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to
implement the various regulations governing the Environmental Impact Assessments (EIAs) to
ensure that developmental projects are in line with sustainable development of natural
resources. The project was conceptualized without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA,
petitioner argues that while it is true that as of now, only the Caticlan side has been issued an
ECC, the entire project involves the Boracay side, which should have been considered a colocated project. Petitioner claims that any project involving Boracay requires a full EIA since it is
an ECA. Phase 1 of the project will affect Boracay and Caticlan as they are separated only by a
narrow strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued must
be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower
channel due to the reclamation project will likely divert sand transport off the southwest part of
Boracay, whereas the characteristic coast of the Caticlan side of the strait indicate stronger
sediment transport.[77] The white-sand beaches of Boracay and its surrounding marine
environment depend upon the natural flow of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and
Boracay shall adversely affect the frail ecological balance of the area, petitioner submits that
while the study conducted by the MERF-UPMSI only considers the impact of the reclamation
project on the land, it is undeniable that it will also adversely affect the already frail ecological
balance of the area. The effect of the project would have been properly assessed if the proper
EIA had been performed prior to any implementation of the project.
According to petitioner, respondent Provinces intended purposes do not prevail over its
duty and obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty
Port may be done through other means.

In its Comment[78] dated June 21, 2011, respondent Province claimed that application for
reclamation of 40 hectares is advantageous to the Provincial Government considering that its
filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum
fee as prescribed under Section 4.2 of Administrative Order No. 2007-2.[79]
Respondent Province considers the instant petition to be premature; thus, it must
necessarily fail for lack of cause of action due to the failure of petitioner to fully exhaust the
available administrative remedies even before seeking judicial relief. According to respondent
Province, the petition primarily assailed the decision of respondent DENR-EMB RVI in granting
the ECC for the subject project consisting of 2.64 hectares and sought the cancellation of the
ECC for alleged failure of respondent Province to submit proper documentation as required for
its issuance. Hence, the grounds relied upon by petitioner can be addressed within the confines of
administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order
No. 2003-30 (DAO 2003-30),[80] the issuance of an ECC[81] is an official decision of DENR-EMB
RVI on the application of a project proponent.[82] It cites Section 6 of DENR DAO 2003-30,
which provides for a remedy available to the party aggrieved by the final decision on the
proponents ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that
results to petitioners unfounded fears and baseless apprehensions. It is respondent Provinces
contention that its 2.64-hectare reclamation project is considered as a stand alone project,
separate and independent from the approved area of 40 hectares. Thus, petitioner should have
observed the difference between the future development plan of respondent Province from its
actual project being undertaken.[83]
Respondent Province clearly does not dispute the fact that it revised its original
application to respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such
revision is part of its future plan, and implementation thereof is still subject to availability of
funds, independent scientific environmental study, separate application of ECC and notice to
proceed to be issued by respondent PRA.[84]
Respondent Province goes on to claim that [p]etitioners version of the Caticlan jetty port
expansion project is a bigger project which is still at the conceptualization stage. Although this
project was described in the Notice to Proceed issued by respondent PRA to have two phases,
36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the
[ongoing] Caticlan jetty port expansion project.[85]
Respondent Province says that the Accomplishment Report[86] of its Engineering Office
would attest that the actual project consists of 2.64 hectares only, as originally planned and
conceptualized, which was even reduced to 2.2 hectares due to some construction and design
modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is
limited to 2.64 hectares only, based on respondent PRAs Evaluation Report[87] dated October 18,
2010, which was in turn the basis of the issuance of the Notice to Proceed dated October 19,

2010, because the projects financial component is P260,000,000.00 only. Said Evaluation Report
indicates that the implementation of the other phases of the project including site 2, which
consists of the other portions of the 40-hectare area that includes a portion in Boracay, is still
within the 10-year period and will depend largely on the availability of funds of respondent
Province.[88]
So, even if respondent PRA approved an area that would total up to 40 hectares, it was
divided into phases in order to determine the period of its implementation. Each phase was
separate and independent because the source of funds was also separate. The required documents
and requirements were also specific for each phase. The entire approved area of 40 hectares
could be implemented within a period of 10 years but this would depend solely on the
availability of funds.[89]
As far as respondent Province understands it, additional reclamations not covered by the
ECC, which only approved 2.64 hectares, should undergo another EIA. If respondent Province
intends to commence the construction on the other component of the 40 hectares, then it agrees
that it is mandated to secure a new ECC.[90]
Respondent Province admits that it dreamt of a 40-hectare project, even if it had
originally planned and was at present only financially equipped and legally compliant to
undertake 2.64 hectares of the project, and only as an expansion of its old jetty port.[91]
Respondent Province claims that it has complied with all the necessary requirements for
securing an ECC. On the issue that the reclamation project is within an ECA requiring the
performance of a full or programmatic EIA, respondent Province reiterates that the idea of
expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64 hectares,
based on the limits of its funding and authority. From the beginning, its intention was to
rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected
traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project
Grouping Matrix for Determination of EIA Report Type considered as Minor Reclamation
Projects falling under Group II Non ECP in an ECA. Whether 2.64 or 40 hectares in area, the
subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the
ongoing reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of
the approved 40-hectare area as it is originally planned for the expansion site of the existing
Caticlan jetty port.At present, it has no definite conceptual construction plan of the said portion
in Boracay and it has no financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan
while the alleged component that falls within an ECA is in Boracay. Considering its geographical
location, the two sites cannot be considered as a contiguous area for the reason that it is separated
by a body of water a strait that traverses between the mainland Panay wherein Caticlan is located
and Boracay. Hence, it is erroneous to consider the two sites as a co-located project within an
ECA. Being a stand alone project and an expansion of the existing jetty port, respondent DENR-

EMB RVI had required respondent Province to perform an EPRMP to secure an ECC as
sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had
erroneously categorized its project as Non-ECP in an ECA, this was not a final
determination. Respondent DENR-EMB RVI, which was the administrator of the EIS system,
had the final decision on this matter. Under DENR DAO 2003-30, an application for ECC, even
for a Category B2 project where an EPRMP is conducted, shall be subjected to a review process.
Respondent DENR-EMB RVI had the authority to deny said application. Its Regional Director
could either issue an ECC for the project or deny the application. He may also require a more
comprehensive EIA study. The Regional Director issued the ECC based on the EPRMP
submitted by respondent Province and after the same went through the EIA review process.
Thus, respondent Province concludes that petitioners allegation of this being a co-located
project is premature if not baseless as the bigger reclamation project is still on the
conceptualization stage. Both respondents PRA and Province are yet to complete studies and
feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that
it had worked within the limits of the ECC.[92]
With regard to petitioners allegation that respondent Province failed to get the favorable
endorsement of the concerned LGUs in violation of the Local Government Code, respondent
Province contends that consultation vis--vis the favorable endorsement from the concerned LGUs
as contemplated under the Local Government Code are merely tools to seek advice and not a
power clothed upon the LGUs to unilaterally approve or disapprove any government
projects. Furthermore, such endorsement is not necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of
permits and certifications as a pre-requisite for the issuance of an ECC. Respondent Province
claims to have conducted consultative activities with LGUs in connection with Sections 26 and
27 of the Local Government Code. The vehement and staunch objections of both
the Sangguniang Barangay of Caticlan and theSangguniang Bayan of Malay, according to
respondent Province, were not rooted on its perceived impact upon the people and the
community in terms of environmental or ecological balance, but due to an alleged conflict with
their principal position to develop, utilize and reap benefits from the natural resources found
within its jurisdiction.[93] Respondent Province argues that these concerns are not within the
purview of the Local Government Code. Furthermore, the Preliminary Geohazard Assessment
Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010034 should address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local
Government Code is to create an avenue for parties, the proponent and the LGU concerned, to
come up with a tool in harmonizing its views and concerns about the project. The duty to consult
does not automatically require adherence to the opinions during the consultation process. It is
allegedly not within the provisions to give the full authority to the LGU concerned to unilaterally

approve or disapprove the project in the guise of requiring the proponent of securing
its favorable endorsement. In this case, petitioner is calling a halt to the project without providing
an alternative resolution to harmonize its position and that of respondent Province.
Respondent Province claims that the EPRMP[94] would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral
communities may be found along the vicinity. Thus, fish life at the project site is quite
scarce due to the absence of marine support systems like the sea grass beds and coral
reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point
of jetty to the shallowest point, there was no more coral patch and the substrate is sandy.
It is of public knowledge that the said foreshore area is being utilized by the residents
ever since as berthing or anchorage site of their motorized banca. There will be no
possibility of any coral development therein because of its continuous
utilization. Likewise, the activity of the strait that traverses between the main land
Caticlan and Boracay Island would also be a factor of the coral development. Corals
[may] only be formed within the area if there is scientific human intervention, which is
absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioners allegations
pertaining to the environmental effects of Respondent-LGUs 2.64 hectares reclamation
project. The alleged environmental impact of the subject project to the beaches of
Boracay Island remains unconfirmed. Petitioner had unsuccessfully proven that the
project would cause imminent, grave and irreparable injury to the community. [95]

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules
provide that the TEPO may be dissolved if it appears after hearing that its issuance or
continuance would cause irreparable damage to the party or person enjoined, while the applicant
may be fully compensated for such damages as he may suffer and subject to the posting of a
sufficient bond by the party or person enjoined. Respondent Province contends that the TEPO
would cause irreparable damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area,
including tourists and passengers serviced by the jetty port, brought about by the
abrupt cessation of development works.
As regards financial dislocation, the arguments of respondent Province are summarized
below:
1. This project is financed by bonds which the respondent Province had issued to its
creditors as the financing scheme in funding the present project is by way of credit
financing through bond flotation.

2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold
to investors, which in turn would be paid by the income that the project would realize
or incur upon its completion.
3. While the project is under construction, respondent Province is appropriating a
portion of its Internal Revenue Allotment (IRA) budget from the 20% development
fund to defray the interest and principal amortization due to the Guarantee Bank.
4. The respondent Provinces IRA, regular income, and/or such other revenues or funds,
as may be permitted by law, are being used as security for the payment of the said
loan used for the projects construction.
5. The inability of the subject project to earn revenues as projected upon completion will
compel the Province to shoulder the full amount of the obligation, starting from year
2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other
revenues or funds as permitted by law; if project is stopped, detriment of the public
welfare and its constituents.[96]

As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards
most especially that reclaimed land if not properly secured may be eroded into the
sea.
2. The construction has accomplished 65.26 percent of the project. The embankment
that was deposited on the project has no proper concrete wave protection that might
be washed out in the event that a strong typhoon or big waves may occur affecting
the strait and the properties along the project site. It is already the rainy season and
there is a big possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out
might be transferred to the adjoining properties which could affect its natural
environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing
to environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total erosion
of the embankment that has been dumped on the accomplished area. [97]

Respondent Province claims that petitioner will not stand to suffer immediate, grave and
irreparable injury or damage from the ongoing project. The petitioners perceived fear of
environmental destruction brought about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of
Procedure on Environmental Cases, the TEPO may be dissolved.

Respondent PRA filed its Comment[98] on June 22, 2011. It alleges that on June 24, 2006,
Executive Order No. 543 delegated the power to approve reclamation projects to respondent
PRA through its governing Board, subject to compliance with existing laws and rules and further
subject to the condition that reclamation contracts to be executed with any person or entity
(must) go through public bidding.
Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the approval
process and procedures for various reclamation projects to be undertaken. Respondent PRA
prepared an Evaluation Report on November 5, 2009[99] regarding Aklans proposal to increase its
project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had complied with
the requirements under the law that respondent PRA, through its Board of Directors, approved
the proposed project under its Board Resolution No. 4094.[100] In the same Resolution, respondent
PRA Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial
government to implement the reclamation project under certain conditions.
The issue for respondent PRA was whether or not it approved the respondent Provinces
2.64-hectare reclamation project proposal in willful disregard of alleged numerous irregularities
as claimed by petitioner.[101]
Respondent PRA claims that its approval of the Aklan Reclamation Project was in
accordance with law and its rules. Indeed, it issued the notice to proceed only after Aklan had
complied with all the requirements imposed by existing laws and regulations. It further contends
that the 40 hectares involved in this project remains a plan insofar as respondent PRA is
concerned. What has been approved for reclamation by respondent PRA thus far is only the 2.64hectare reclamation project. Respondent PRA reiterates that it approved this reclamation project
after extensively reviewing the legal, technical, financial, environmental, and operational aspects
of the proposed reclamation.[102]
One of the conditions that respondent PRA Board imposed before approving the Aklan
project was that no reclamation work could be started until respondent PRA has approved the
detailed engineering plans/methodology, design and specifications of the reclamation. Part of the
required submissions to respondent PRA includes the drainage design as approved by the Public
Works Department and the ECC as issued by the DENR, all of which the Aklan government
must submit to respondent PRA before starting any reclamation works.[103] Under Article IV(B)
(3) of the MOA between respondent PRA and Aklan, the latter is required to submit, apart from
the ECC, the following requirements for respondent PRAs review and approval, as basis for the
issuance of a Notice to Proceed (NTP) for Reclamation Works:
(a)

Land-form plan with technical description of the metes and bounds of the same
land-form;

(b)

Final master development and land use plan for the project;

(c)

Detailed engineering studies, detailed engineering design, plans and specification

for reclamation works, reclamation plans and methodology, plans for the sources
of fill materials;

(d)

Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to

include a cost effective and efficient drainage system as may be required based
on the results of the studies;

(e)

Detailed project cost estimates and quantity take-off per items of work of the
rawland reclamation components, e.g. reclamation containment structures and
soil consolidation;

(f)

Organizational chart of the construction arm, manning table, equipment schedule

for the project; and,

(g)

Project timetable (PERT/CPM) for the entire project construction period. [104]

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the
MOA to strictly comply with all conditions of the DENR-EMB-issued ECC and/or comply with
pertinent local and international commitments of the Republic of the Philippines to ensure
environmental protection.[105]
In its August 11, 2010 letter,[106] respondent PRA referred for respondent Provinces appropriate
action petitioners Resolution 001, series of 2010 and Resolution 46, series of 2010, of
the Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA[107] on September
16, 2010 informing it that respondent Province had already met with the different officials of
Malay, furnishing respondent PRA with the copies of the minutes of such
meetings/presentations. Governor Marquez also assured respondent PRA that it had complied
with the consultation requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Provinces project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all pertinent issuances, especially
the ECC issued by DENR-EMB RVI.[108] Respondent PRA stresses that its earlier approval of the
40-hectare reclamation project under its Resolution No. 4094, series of 2010, still requires a
second level of compliance requirements from the proponent.Respondent Province could not
possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1
of Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and

(ii) waste water treatment;

(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.[109]
Respondent PRA claims that it was only after the evaluation of the above submissions that it
issued to respondent Province the NTP, limited to the 2.64-hectare reclamation
project.Respondent PRA even emphasized in its evaluation report that should respondent
Province pursue the other phases of its project, it would still require the submission of an ECC
for each succeeding phases before the start of any reclamation works.[110]
Respondent PRA, being the national governments arm in regulating and coordinating all
reclamation projects in the Philippines a mandate conferred by law manifests that it is incumbent
upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its technical
competencies, all reclamation projects submitted to it for approval. Once the reclamation projects
requirements set forth by law and related rules have been complied with, respondent PRA is
mandated to approve the same. Respondent PRA claims, [w]ith all the foregoing rigorous and
detailed requirements submitted and complied with by Aklan, and the attendant careful and
meticulous technical and legal evaluation by respondent PRA, it cannot be argued that the
reclamation permit it issued to Aklan is founded upon numerous irregularities; as recklessly and
baselessly imputed by BFI.[111]
In its Comment[112] dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing
the ECC certifies that the project had undergone the proper EIA process by assessing, among
others, the direct and indirect impact of the project on the biophysical and human environment
and ensuring that these impacts are addressed by appropriate environmental protection and
enhancement measures, pursuant to Presidential Decree No. 1586, the Revised Procedural
Manual for DENR DAO 2003-30, and the existing rules and regulations.[113]
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which
includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no
relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very
reason that the project is not located in the Island of Boracay, being located in Barangay
Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject jetty
port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a
water body. This was why respondent Province had faithfully secured an ECC pursuant to the
Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as
contained in the EPRMP on March 19, 2010, which were the bases in granting ECC No. R61003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and
Passenger Terminal, covering 2.64 hectares.[114]

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay
had been considered by the DENR-Provincial Environment and Natural Resources Office
(PENRO), Aklan in the issuance of the Order[115] dated January 26, 2010, disregarding the claim
of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the
application of the Province of Aklan; and another Order of Rejection dated February 5, 2010 of
the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-43B, of the
Province of Aklan.[116]
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP
for the issuance of an ECC were merely for the expansion and modernization of the old jetty port
in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in
Barangay Caticlan and Boracay. The previous letter of respondent Province dated October 14,
2009 addressed to DENR-EMB RVI Regional Executive Director, would show that the
reclamation project will cover approximately 2.6 hectares.[117] This application for ECC was not
officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent
DENR-EMB RVI looked at the documents submitted by respondent Province and saw that the
subject area covered by the ECC application and subsequently granted with ECC-R6-1003-0967100 consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on
the excess area.[118]
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare
reclamation project under Non ECP in ECA, this does not fall within the definition of a colocated project because the subject project is merely an expansion of the old Caticlan Jetty Port,
which had a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only
an EPRMP, not a PEIS or PEPRMP, is required.[119]
Respondent Province submitted to respondent DENR-EMB RVI the following documents
contained in the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed
Jetty Ports at Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the
Bureau of Fisheries Aquatic Resources (BFAR) Central Office, particularly in
Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences
Bureau (MGB), Central Office and Engr. Roger Esto, Provincial Planning and
Development Office (PPDO), Aklan in 2009 entitled Preliminary Geo-hazard
Assessment for the Enhancement of the Existing Caticlan Jetty Port Terminal through
Beach Zone Restoration and Protective Marina Development in Malay, Aklan.

Respondent DENR-EMB RVI claims that the above two scientific studies were enough
for it to arrive at a best professional judgment to issue an amended ECC for the Aklan Marina
Project covering 2.64 hectares.[120] Furthermore, to confirm that the 2.64-hectare reclamation has
no significant negative impact with the surrounding environment particularly in Boracay, a more

recent study was conducted, and respondent DENR-EMB RVI alleges that [i]t is very important
to highlight that the input data in the [MERF- UPMSI] study utilized the [40-hectare]
reclamation and [200-meter] width seaward using the tidal and wave modelling.[121] The study
showed that the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait
between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08, entitled Simplifying the Requirements of ECC or CNC Applications; that
the EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR
DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC is
not a permit per se but a planning tool for LGUs to consider in its decision whether or not to
issue a local permit.[122]
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed
and deprived the DENR Secretary of the opportunity to review and/or reverse the decision of his
subordinate office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 200330. There is no extreme urgency that necessitates the granting of Mandamus or issuance of
TEPO that put to balance between the life and death of the petitioner or present grave or
irreparable damage to environment.[123]
After receiving the above Comments from all the respondents, the Court set the case for
oral arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and
Motion[124] praying for the dismissal of the petition, as the province was no longer pursuing the
implementation of the succeeding phases of the project due to its inability to comply with Article
IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become
moot. Respondent Province alleges that the petition is premised on a serious misappreciation of
the real extent of the contested reclamation project as certainly the ECC covered only a total of
2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke
of 40 hectares, respondent Provinces submission of documents to respondent PRA pertaining to
said area was but the first of a two-step process of approval. Respondent Province claims that its
failure to comply with the documentary requirements of respondent PRA within the period
provided, or 120 working days from the effectivity of the MOA, indicated its waiver to pursue
the remainder of the project.[125] Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011,[126] Governor Marquez
informed respondent PRA that the Province of Aklan is no longer pursuing the
implementation of the succeeding phases of the project with a total area of 37.4
hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence,
the existing MOA will cover only the project area of 2.64 hectares.
In his reply-letter dated August 22, 2011,[127] [respondent] PRA General
Manager informed Governor Marquez that the [respondent] PRA Board of
Directors has given [respondent] PRA the authority to confirm the position of the
Province of Aklan that the Aklan Beach Zone Restoration and Protection Marine

Development Project will now be confined to the reclamation and development of

the 2.64 hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact
limited to 2.64 hectares, as evidenced by the NTP issued by respondent PRA. The
recent exchange of correspondence between respondents Province of Aklan and
[respondent] PRA further confirms the intent of the parties all along. Hence, the
Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares
as feared. This completely changes the extent of the Project and, consequently,
moots the issues and fears expressed by the petitioner.[128] (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed
as no further justiciable controversy exists since the feared adverse effect to Boracay Islands
ecology had become academic all together.[129]
The Court heard the parties oral arguments on September 13, 2011 and gave the latter
twenty (20) days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion,[130] which the Court
received on April 2, 2012 stating that:
1.
2.
3.

it had submitted the required documents and studies to respondent DENR-EMB

RVI before an ECC was issued in its favor;
it had substantially complied with the requirements provided under PRA
Administrative Order 2007-2, which compliance caused respondent PRAs Board
to approve the reclamation project; and
it had conducted a series of consultative [presentations] relative to the reclamation
project before the LGU of Malay Municipality, the Barangay Officials of
Caticlan, and stakeholders of Boracay Island.

Respondent Province further manifested that the Barangay Council of Caticlan, Malay,
Aklan enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled Resolution
Favorably Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial
Government at Caticlan Coastline[131] and that the Sangguniang Bayanof the Municipality of
Malay, Aklan enacted Resolution No. 020, series of 2012, entitled Resolution Endorsing the 2.6
Hectares Reclamation Project of the Provincial Government of Aklan Located at Barangay
Caticlan, Malay, Aklan.[132]
Respondent Province claims that its compliance with the requirements of respondents
DENR-EMB RVI and PRA that led to the approval of the reclamation project by the said
government agencies, as well as the recent enactments of the Barangay Council of Caticlan and
the Sangguniang Bayan of the Municipality of Malay favorably endorsing the said project, had
categorically addressed all the issues raised by the Petitioner in its Petition dated June 1,
2011. Respondent Province prays as follows:

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that after due proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on
June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just
and equitable under the premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I.

Whether or not the petition should be dismissed for having been rendered moot
and academic

II.

Whether or not the petition is premature because petitioner failed to exhaust

administrative remedies before filing this case

III.

Whether or not respondent Province failed to perform a full EIA as required by

laws and regulations based on the scope and classification of the project

IV.

Whether or not respondent Province complied with all the requirements under the
pertinent laws and regulations

V.

Whether or not there was proper, timely, and sufficient public consultation for the
project
DISCUSSION

On the issue of whether or not the Petition should

be dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that
with the alleged favorable endorsement of the reclamation project by theSangguniang
Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues
raised by petitioner had already been addressed, and this petition should be dismissed for being
moot and academic.
On the contrary, a close reading of the two LGUs respective resolutions would reveal that
they are not sufficient to render the petition moot and academic, as there are explicit conditions
imposed that must be complied with by respondent Province. In Resolution No. 003, series of
2012, of the Sangguniang Barangay of Caticlan it is stated that any vertical structures to be
constructed shall be subject for barangay endorsement.[133] Clearly, what the barangay endorsed
was the reclamation only, and not the entire project that includes the construction of a

commercial building and wellness center, and other tourism-related facilities. Petitioners
objections, as may be recalled, pertain not only to the reclamation per se, but also to the building
to be constructed and the entire projects perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay[134] is even more
specific. It reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it will
generate scores of benefits for the Local Government of Malay in terms of income
and employment for its constituents, but the fact cannot be denied that the project
will take its toll on the environment especially on the nearby fragile island of
Boracay and the fact also remains that the project will eventually displace the
local transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body
through the Committee where this matter was referred conducted several
consultations/committee hearings with concerned departments and the private
sector specifically Boracay Foundation, Inc. and they are one in its belief that this
Local Government Unit has never been against development so long as
compliance with the law and proper procedures have been observed and that
paramount consideration have been given to the environment lest we disturb the
balance of nature to the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental
relations, this August Body requires no less than transparency and faithful
commitment from the Provincial Government of Aklan in the process of going
through these improvements in the Municipality because it once fell prey to
infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address
all issues and concerns, this Honorable Council necessitates a sincere
commitment from the Provincial Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay within the building in the
reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before
the resumption of the reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in
Barangay Caticlan and not beyond;
4. That the local transportation operators/cooperatives will not be displaced;
and
5. The Provincial Government of Aklan conduct a simultaneous
comprehensive study on the environmental impact of the reclamation
project especially during Habagat and Amihan seasons and put in place as

early as possible mitigating measures on the effect of the project to the

environment.
WHEREAS, having presented these stipulations, failure to comply
herewith will leave this August Body no choice but to revoke this endorsement,
hence faithful compliance of the commitment of the Provincial Government is
highly appealed for[.][135] (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent
Province to comply with on pain of revocation of its endorsement of the project, including the
need to conduct a comprehensive study on the environmental impact of the reclamation project,
which is the heart of the petition before us. Therefore, the contents of the two resolutions
submitted by respondent Province do not support its conclusion that the subsequent favorable
endorsement of the LGUs had already addressed all the issues raised and rendered the instant
petition moot and academic.
On the issue of failure to exhaust administrative
remedies
Respondents, in essence, argue that the present petition should be dismissed for
petitioners failure to exhaust administrative remedies and even to observe the hierarchy of
courts. Furthermore, as the petition questions the issuance of the ECC and the NTP, this involves
factual and technical verification, which are more properly within the expertise of the concerned
government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which
provides:
Section 6. Appeal

Any party aggrieved by the final decision on the ECC / CNC applications may,
within 15 days from receipt of such decision, file an appeal on the following
grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a
means to settle grievances between proponents and aggrieved parties to avert
unnecessary legal action. Frivolous appeals shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority
EMB Regional Office Director
EMB Central Office Director
DENR Secretary

Where to file the appeal

Office of the EMB Director
Office of the DENR Secretary
Office of the President

(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then
petitioner is duty bound to observe the same and may not be granted recourse to the regular
courts for its failure to do so.
We do not agree with respondents appreciation of the applicability of the rule on
exhaustion of administrative remedies in this case. We are reminded of our ruling in Pagara v.
Court of Appeals,[136] which summarized our earlier decisions on the procedural requirement of
exhaustion of administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast
rule. It is not applicable (1) where the question in dispute is purely a legal one, or
(2) where the controverted act is patently illegal or was performed without
jurisdiction or in excess of jurisdiction; or (3) where the respondent is a
department secretary, whose acts as an alter ego of the President bear the implied
or assumed approval of the latter, unless actually disapproved by him, or (4)
where there are circumstances indicating the urgency of judicial
intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230;
Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy
and adequate remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no
due process observed (Villanos vs. Subido, 45 SCRA 299), or where the protestant
has no other recourse (Sta. Maria vs. Lopez, 31 SCRA 637).[137] (Emphases
supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO
2003-30 is only applicable, based on the first sentence thereof, if the person or entity charged
with the duty to exhaust the administrative remedy of appeal to the appropriate government
agency has been a party or has been made a party in the proceedings wherein the decision to be
appealed was rendered. It has been established by the facts that petitioner was never made a
party to the proceedings before respondent DENR-EMB RVI. Petitioner was only informed that
the project had already been approved after the ECC was already granted.[138] Not being a party to
the said proceedings, it does not appear that petitioner was officially furnished a copy of the
decision, from which the 15-day period to appeal should be reckoned, and which would warrant
the application of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an
ECC was rendered, it stands to be aggrieved by the decision,[139] because it claims that the
reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay side,
where petitioners members own establishments engaged in the tourism trade. As noted earlier,
petitioner contends that the declared objective of the reclamation project is to exploit Boracays

tourism trade because the project is intended to enhance support services thereto; however, this
objective would not be achieved since the white-sand beaches for which Boracay is famous
might be negatively affected by the project. Petitioners conclusion is that respondent Province,
aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our
environmental laws, and should thus be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a
relief for petitioner under the writ of continuing mandamus, which is a special civil action that
may be availed of to compel the performance of an act specifically enjoined by law[140] and which
provides for the issuance of a TEPO as an auxiliary remedy prior to the issuance of the writ
itself.[141] The Rationale of the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the
initiation of regulation by Congress to the implementation of regulatory programs
by the appropriate government agencies.
Thus, a government agencys inaction, if any, has serious implications on
the future of environmental law enforcement. Private individuals, to the extent
that they seek to change the scope of the regulatory process, will have to rely on
such agencies to take the initial incentives, which may require a judicial
component. Accordingly, questions regarding the propriety of an agencys action
or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ
of mandamus, which allows for the enforcement of the conduct of the tasks to
which the writ pertains: the performance of a legal duty.[142] (Emphases added.)
The writ of continuing mandamus permits the court to retain jurisdiction after judgment
in order to ensure the successful implementation of the reliefs mandated under the courts
decision and, in order to do this, the court may compel the submission of compliance reports
from the respondent government agencies as well as avail of other means to monitor compliance
with its decision.[143]
According to petitioner, respondent Province acted pursuant to a MOA with respondent
PRA that was conditioned upon, among others, a properly-secured ECC from respondent DENREMB RVI. For this reason, petitioner seeks to compel respondent Province to comply with
certain environmental laws, rules, and procedures that it claims were either circumvented or
ignored. Hence, we find that the petition was appropriately filed with this Court under Rule 8,
Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.When any agency or
instrumentality of the government or officer thereof unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from
an office, trust or station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein, or unlawfully excludes
another from the use or enjoyment of such right and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved

thereby may file a verified petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that judgment be
rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by
reason of the malicious neglect to perform the duties of the respondent, under the
law, rules or regulations. The petition shall also contain a sworn certification of
non-forum shopping.
SECTION 2. Where to file the petition.The petition shall be filed with the
Regional Trial Court exercising jurisdiction over the territory where the actionable
neglect or omission occurred or with the Court of Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial
Court exercising jurisdiction over the territory where the actionable neglect or omission
occurred, the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to
determine the questions of unique national and local importance raised here that pertain to laws
and rules for environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and
classification of the project, a full EIA is required
by laws and regulations, and whether respondent
Province complied with all the requirements under
the pertinent laws and regulations
Petitioners arguments on this issue hinges upon its claim that the reclamation project is
misclassified as a single project when in fact it is co-located. Petitioner also questions the
classification made by respondent Province that the reclamation project is merely an expansion
of the existing jetty port, when the project descriptions embodied in the different documents filed
by respondent Province describe commercial establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified as a new project. Petitioner likewise
cries foul to the manner by which respondent Province allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its
previous project in 1999 and claiming that the new project is a mere expansion of the previous
one.
As previously discussed, respondent Province filed a Manifestation and Motion stating
that the ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in
Caticlan, and its application for reclamation of 40 hectares with respondent PRA was conditioned
on its submission of specific documents within 120 days. Respondent Province claims that its
failure to comply with said condition indicated its waiver to pursue the succeeding phases of the
reclamation project and that the subject matter of this case had thus been limited to 2.64 hectares.
Respondent PRA, for its part, declared through its General Manager that the Aklan Beach Zone

Restoration and Protection Marine Development Project will now be confined to the reclamation
and development of the 2.64 hectares, more or less.[144]
The Court notes such manifestation of respondent Province. Assuming, however, that the
area involved in the subject reclamation project has been limited to 2.64 hectares, this case has
not become moot and academic, as alleged by respondents, because the Court still has to check
whether respondents had complied with all applicable environmental laws, rules, and regulations
pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with
delegated powers to review and evaluate all EIA reports, and to grant or deny ECCs to project
proponents.[145] It is the DENR that has the duty to implement the EIS system. It appears,
however, that respondent DENR-EMB RVIs evaluation of this reclamation project was
problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions
bear great weight in this case. However, the following are the issues that put in question the
wisdom of respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Provinces classification of the project as a mere
expansion of the existing jetty port in Caticlan, instead of classifying it as a new
project;
2. Its classification of the reclamation project as a single instead of a colocated project;
3. The lack of prior public consultations and approval of local government agencies;
and
4. The lack of comprehensive studies regarding the impact of the reclamation project
to the environment.
The above issues as raised put in question the sufficiency of the evaluation of the project
by respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with
the expertise and authority to state whether this is a new project, subject to the more rigorous
environmental impact study requested by petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project by respondent Province,
approved by respondent DENR-EMB RVI, as single instead of co-located. Under the Revised
Procedural Manual, the Summary List of Additional Non-Environmentally-Critical Project
(NECP) Types in ECAs Classified under Group II (Table I-2) lists buildings, storage facilities
and other structures as a separate item from transport terminal facilities. This creates the question
of whether this project should be considered as consisting of more than one type of activity, and
should more properly be classified as co-located, under the following definition from the same
Manual, which reads:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is

a group of single projects, under one or more proponents/locators, which
are located in a contiguous area and managed by one administrator, who is
also the ECC applicant. The co-located project may be an economic zone
or industrial park, or a mix of projects within a catchment, watershed or
river basin, or any other geographical, political or economic unit of
area. Since the location or threshold of specific projects within the
contiguous area will yet be derived from the EIA process based on the
carrying capacity of the project environment, the nature of the project is
called programmatic. (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the
project to address the question of whether this could be deemed as a group of single projects
(transport terminal facility, building, etc.) in a contiguous area managed by respondent Province,
or as a single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under
items 1 and 3 above because the type of EIA study required under the Revised Procedural
Manual depends on such classification.
The very definition of an EIA points to what was most likely neglected by respondent
Province as project proponent, and what was in turn overlooked by respondent DENR-EMB
RVI, for it is defined as follows:
An [EIA] is a process that involves predicting and evaluating the likely impacts of
a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the communitys welfare.[146](Emphases
supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation
project to the environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the
size of the original reclaimed land. Furthermore, the area prior to construction merely contained
a jetty port, whereas the proposed expansion, as described in the EPRMP submitted by
respondent Province to respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing
jetty port and terminal that will have a total area of 2.64 hectares, more or less,

after reclamation. The Phase 1 of the project construction costing around P260
million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building 2,500 sq m (1,750 sq m of leasable
space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage
system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation,
completion of the commercial center building, bay walk commercial strip, staff
building, ferry terminal, a cable car system and wharf marina. This will entail an
additional estimated cost of P785 million bringing the total investment
requirement to about P1.0 billion.[147] (Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province
above, a significant portion of the reclaimed area would be devoted to the construction of a
commercial building, and the area to be utilized for the expansion of the jetty port consists of a
mere 3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by
respondent Province should at the very least predict the impact that the construction of the new
buildings on the reclaimed land would have on the surrounding environment. These new
constructions and their environmental effects were not covered by the old studies that respondent
Province previously submitted for the construction of the original jetty port in 1999, and which it
re-submitted in its application for ECC in this alleged expansion, instead of conducting updated
and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are
separated only by a narrow strait. This becomes more imperative because of the significant
contributions of Boracays white-sand beach to the countrys tourism trade, which requires
respondent Province to proceed with utmost caution in implementing projects within its vicinity.

We had occasion to emphasize the duty of local government units to ensure the quality of
the environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of
Davao,[148] wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local
Government Code, defines a local government unit as a body politic and corporate
endowed with powers to be exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary. Governmental functions
are those that concern the health, safety and the advancement of the public good
or welfare as affecting the public generally. Proprietary functions are those that
seek to obtain special corporate benefits or earn pecuniary profit and intended for
private advantage and benefit. When exercising governmental powers and
performing governmental duties, an LGU is an agency of the national
government. When engaged in corporate activities, it acts as an agent of the
community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the
LGUs to promote the peoples right to a balanced ecology. Pursuant to this, an
LGU, like the City of Davao, can not claim exemption from the coverage of PD
1586. As a body politic endowed with governmental functions, an LGU has the
duty to ensure the quality of the environment, which is the very same objective of
PD 1586.
xxxx
Section 4 of PD 1586 clearly states that no person, partnership or
corporation shall undertake or operate any such declared environmentally critical
project or area without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. The Civil Code
defines a person as either natural or juridical. The state and its political
subdivisions, i.e., the local government units are juridical persons. Undoubtedly
therefore, local government units are not excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to
implement the policy of the state to achieve a balance between socio-economic
development and environmental protection, which are the twin goals of
sustainable development. The above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a comprehensive
andintegrated environmental protection program where all the sectors of the
community are involved, i.e., the government and the private sectors. The local
government units, as part of the machinery of the government, cannot therefore be
deemed as outside the scope of the EIS system.[149] (Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make
a proper study, and if it should find necessary, to require respondent Province to address these

environmental issues raised by petitioner and submit the correct EIA report as required by the
projects specifications. The Court requires respondent DENR-EMB RVI to complete its study
and submit a report within a non-extendible period of three months. Respondent DENR-EMB
RVI should establish to the Court in said report why the ECC it issued for the subject project
should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in
the maintenance of ecological balance, and requires them to secure prior public consultation and
approval of local government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project
proponent is the local government of Aklan, it is respondent PRA which authorized the
reclamation, being the exclusive agency of the government to undertake reclamation
nationwide. Hence, it was necessary for respondent Province to go through respondent PRA and
to execute a MOA, wherein respondent PRAs authority to reclaim was delegated to respondent
Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national
government institution which is tasked with the issuance of the ECC that is a prerequisite to
projects covered by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and
ecological balance of local communities, and is covered by the requirements found in the Local
Government Code provisions that are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. - It shall be the duty of every national agency or governmentowned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of crop land, rangeland, or
forest cover, and extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other sectors concerned
and explain the goals and objectives of the project or program, its impact upon the
people and the community in terms of environmental or ecological balance, and
the measures that will be undertaken to prevent or minimize the adverse effects
thereof.
Section 27. Prior Consultations Required. - No project or program shall be
implemented by government authorities unless the consultations mentioned in
Sections 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of the Constitution.

In Lina, Jr. v. Pao,[150] we held that Section 27 of the Local Government Code applies only to
national programs and/or projects which are to be implemented in a particular local
community[151] and that it should be read in conjunction with Section 26. We held further in this
manner:
Thus, the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among those
enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2)
may bring about climatic change; (3) may cause the depletion of non-renewable
resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may
eradicate certain animal or plant species from the face of the planet; and (6) other
projects or programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna.
[152]
(Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project
as described above falls under Section 26 because the commercial establishments to be built on
phase 1, as described in the EPRMP quoted above, could cause pollution as it could generate
garbage, sewage, and possible toxic fuel discharge.[153]
Our ruling in Province of Rizal v. Executive Secretary[154] is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v.
Lanzanas, where we held that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve the construction of a mooring
facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and
functions of the municipality, grants the sangguniang bayan the power to, among
other things, enact ordinances, approve resolutions and appropriate funds for the
general welfare of the municipality and its inhabitants pursuant to Section 16 of
th(e) Code. These include:
(1)

Approving ordinances and passing resolutions to protect the

environment and impose appropriate penalties for acts which
endanger the environment, such as dynamite fishing and other
forms of destructive fishing, illegal logging and smuggling of logs,
smuggling of natural resources products and of endangered species
of flora and fauna, slash and burn farming, and such other
activities which result in pollution, acceleration of eutrophication
of rivers and lakes, or of ecological imbalance; [Section 447 (1)
(vi)]

(2)

Prescribing reasonable limits and restraints on the use of property

within the jurisdiction of the municipality, adopting a
comprehensive land use plan for the municipality, reclassifying
land within the jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning ordinances in
consonance with the approved comprehensive land use plan,
subject to existing laws, rules and regulations; establishing fire
limits or zones, particularly in populous centers; and regulating the
construction, repair or modification of buildings within said fire
limits or zones in accordance with the provisions of this Code;
[Section 447 (2)(vi-ix)]

(3)

Approving ordinances which shall ensure the efficient and effective

delivery of the basic services and facilities as provided for under
Section 17 of this Code, and in addition to said services and
facilities, providing for the establishment, maintenance, protection,
and conservation of communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest development
projects and, subject to existing laws, establishing and providing
for the maintenance, repair and operation of an efficient
waterworks system to supply water for the inhabitants
and purifying the source of the water supply; regulating the
construction, maintenance, repair and use of hydrants, pumps,
cisterns and reservoirs;protecting the purity and quantity of the
water supply of the municipality and, for this purpose, extending
the coverage of appropriate ordinances over all territory within the
drainage area of said water supply and within one hundred (100)
meters of the reservoir, conduit, canal, aqueduct, pumping station,
or watershed used in connection with the water service; and
regulating the consumption, use or wastage of water. [Section 447
(5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met
before a national project that affects the environmental and ecological balance of
local communities can be implemented: prior consultation with the affected local
communities, and prior approval of the project by the appropriate sanggunian.
Absent either of these mandatory requirements, the projects implementation is
illegal.[155] (Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law
to have been conducted and secured by the respondent Province.Accordingly, the information
dissemination conducted months after the ECC had already been issued was insufficient to
comply with this requirement under the Local Government Code. Had they been conducted
properly, the prior public consultation should have considered the ecological or environmental

concerns of the stakeholders and studied measures alternative to the project, to avoid or
minimize adverse environmental impact or damage. In fact, respondent Province once tried to
obtain the favorable endorsement of theSangguniang Bayan of Malay, but this was denied by the
latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the EIS
review is mandatory unless otherwise determined by EMB. For all other
undertakings, a public hearing is not mandatory unless specifically required
by EMB.
Proponents should initiate public consultations early in order to ensure that
environmentally relevant concerns of stakeholders are taken into
consideration in the EIA study and the formulation of the management
plan. All public consultations and public hearings conducted during the
EIA process are to be documented. The public hearing/consultation
Process report shall be validated by the EMB/EMB RD and shall
constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same
should be initiated early so that concerns of stakeholders could be taken into consideration in the
EIA study. In this case, respondent Province had already filed its ECC application before it met
with the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08. However, we still find that the LGC requirements of consultation and
approval apply in this case. This is because a Memorandum Circular cannot prevail over the
Local Government Code, which is a statute and which enjoys greater weight under our hierarchy
of laws.
Subsequent to the information campaign of respondent Province, the Municipality of
Malay and the Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when
respondent Province commenced the implementation project, it violated Section 27 of the LGC,
which clearly enunciates that [no] project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with,
and prior approval of the sanggunian concerned is obtained.
The lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan onFebruary
13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which
were both undoubtedly achieved at the urging and insistence of respondent Province. As we have

established above, the respective resolutions issued by the LGUs concerned did not render this
petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of
tourism in Boracay and the protection of the environment, lest they kill the proverbial hen that
lays the golden egg. At the beginning of this decision, we mentioned that there are common
goals of national significance that are very apparent from both the petitioners and the
respondents respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article
II, Declaration of Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people
to a balanced and healthful ecology in accord with the rhythm and harmony of
nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives to needed
investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the
aim, among others, of Presidential Decree No. 1586, Establishing an Environmental Impact
Statement System, Including Other Environmental Management Related Measures and For Other
Purposes, which declared in its first Section that it is the policy of the State to attain and maintain
a rational and orderly balance between socio-economic growth and environmental protection.
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to
Section 2 of Republic Act No. 9593, or The Tourism Act of 2009, which reads:
SECTION 2. Declaration of Policy. The State declares tourism as an
indispensable element of the national economy and an industry of national interest
and importance, which must be harnessed as an engine of socioeconomic growth
and cultural affirmation to generate investment, foreign exchange and
employment, and to continue to mold an enhanced sense of national pride for all
Filipinos. (Emphasis ours.)
The primordial role of local government units under the Constitution and the Local Government
Code of 1991 in the subject matter of this case is also unquestionable. The Local Government
Code of 1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of
the State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their fullest

development as self-reliant communities and make them more effective partners

in the attainment of national goals. Toward this end, the State shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization
shall proceed from the national government to the local government units.
[156]
(Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth
resolution of these issues would benefit all the parties. Thus, respondent Provinces cooperation
with respondent DENR-EMB RVI in the Court-mandated review of the proper classification and
environmental impact of the reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY
GRANTED. The TEPO issued by this Court is hereby converted into a writ of
continuingmandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-Environmental
Management Bureau Regional Office VI shall revisit and review the following
matters:
a. its classification of the reclamation project as a single instead of a co-located
project;
b. its approval of respondent Provinces classification of the project as a mere
expansion of the existing jetty port in Caticlan, instead of classifying it as a new
project; and
c. the impact of the reclamation project to the environment based on new, updated,
and comprehensive studies, which should forthwith be ordered by respondent
DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation
project proposal and submit to the latter the appropriate report and study; and
b. secure approvals from local government units and hold proper consultations with
non-governmental organizations and other stakeholders and sectors concerned as
required by Section 27 in relation to Section 26 of the Local Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by
respondent Province of the requirements to be issued by respondent DENR-EMB RVI
in connection to the environmental concerns raised by petitioner, and shall coordinate
with respondent Province in modifying the MOA, if necessary, based on the findings
of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan,
represented by Governor Carlito S. Marquez, The Philippine Reclamation Authority,

and The DENR-EMB (Region VI) are mandated to submit their respective reports to
this Court regarding their compliance with the requirements set forth in this Decision
no later than three (3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and
desist from continuing the implementation of the project covered by ECC-R6-1003096-7100 until further orders from this Court. For this purpose, the respondents shall
report within five (5) days to this Court the status of the project as of their receipt of
this Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.

BF HOMES, INC.
and THEPHILIPPINE
WATERWORKS AND
CONSTRUCTION CORP.,
Petitioners,

- versus -

G.R. No. 171624

Present:
CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
DEL CASTILLO,
ABAD,* and
PEREZ, JJ.
Promulgated:

MANILA ELECTRIC COMPANY,

December 6, 2010
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
LEONARDO-DE CASTRO, J.:
This Petition for Review on Certiorari under Rule 45 of the Rules of Court assails the
Decision[1] dated October 27, 2005 of the Court of Appeals in CA-G.R. SP No. 82826, nullifying
and setting aside (1) the Order[2] dated November 21, 2003 of the Regional Trial Court (RTC),
Branch 202 of Las Pias City, in Civil Case No. 03-0151, thereby dissolving the writ of injunction
against respondent Manila Electric Company (MERALCO); and (2) the Resolution[3] dated
February 7, 2006 of the Court of Appeals denying the Motion for Reconsideration of petitioners
BF Homes, Inc. (BF Homes) and Philippine Waterworks and Construction Corporation (PWCC).
MERALCO is a corporation duly organized and existing under Philippine laws engaged
in the distribution and sale of electric power in Metro Manila. On the other hand, BF Homes and
PWCC are owners and operators of waterworks systems delivering water to over 12,000
households and commercial buildings in BF Homes subdivisions in Paraaque City, Las Pias City,
Caloocan City, and Quezon City. The water distributed in the waterworks systems owned and
operated by BF Homes and PWCC is drawn from deep wells using pumps run by electricity
supplied by MERALCO.
On June 23, 2003, BF Homes and PWCC filed a Petition [With Prayer for the Issuance of
Writ of Preliminary Injunction and for the Immediate Issuance of Restraining Order] against
MERALCO before the RTC, docketed as Civil Case No. 03-0151.
In their Petition before the RTC, BF Homes and PWCC invoked their right to refund
based on the ruling of this Court in Republic v. Manila Electric Company[4]:

7. It is of judicial notice that on November 15, 2002, in G.R. No. 141314,

entitled Republic of the Philippines vs. Manila Electric Company, and G.R. No.
141369, entitled Lawyers Against Monopoly and Poverty (LAMP) et al. vs.
Manila Electric Compnay (MERALCO), (both cases shall hereafter be referred to
as MERALCO Refund cases, for brevity), the Supreme Court ordered
MERALCO to refund its customers, which shall be credited against the customers
future consumption, the excess average amount of P0.167 per kilowatt hour
starting with the customers billing cycles beginning February 1998. The
dispositive portion of the Supreme Court Decision in the MERALCO Refund
cases reads:
WHEREFORE, in view of the foregoing, the instant
petitions are GRANTED and the decision of the Court of Appeals
in C.A. G.R. SP No. 46888 is REVERSED.Respondent
MERALCO is authorized to adopt a rate adjustment in the amount
of P0.017 kilowatthour, effective with respect to MERALCOs
billing cycles beginning February 1994. Further, in accordance
with the decision of the ERB dated February 16, 1998, the excess
average amount of P0.167 per kilowatt hour starting with the
applicants billing cycles beginning February 1998 is ordered to be
refunded to MERALCOs customers or correspondingly credited in
their favor for future consumption.
x x x x.
8. The Motion for Reconsideration filed by MERALCO in the
MERALCO Refund cases was DENIED WITH FINALITY (the uppercase letters
were used by the Supreme Court) in the Resolution of the Supreme Court dated
April 9, 2003.
9. The amount that MERALCO was mandated to refund to [BF Homes
and PWCC] pursuant to the MERALCO Refund cases is in the amount
of P11,834,570.91.[5]
BF Homes and PWCC then alleged in their RTC Petition that:
10. On May 20, 2003, without giving any notice whatsoever, MERALCO
disconnected electric supply to [BF Homes and PWCCs] sixteen (16) water
pumps located in BF Homes in Paraaque, Caloocan, and Quezon City, which thus
disrupted water supply in those areas.
11. On June 4, 2003, [BF Homes and PWCC] received by facsimile
transmission a letter from MERALCO, x x x, in which MERALCO demanded to
[BF Homes and PWCC] the payment of electric bills amounting
to P4,717,768.15.

12. [MERALCO] replied in a letter dated June 11, 2003, x x x, requesting

MERALCO to apply the P4,717,768.15 electric bill against the P11,834,570.91
that MERALCO was ordered to refund to [BF Homes and PWCC] pursuant to the
MERALCO Refund cases. x x x
13. Displaying the arrogance that has become its distinction, MERALCO,
in its letter dated June 16, 2003, x x x, denied [BF Homes and PWCCs] request
alleging that it has not yet come up with the schedule for the refund of large
amounts, such as those of [BF Homes and PWCC].
14. Even while MERALCO was serving its reply-letter to [BF Homes and
PWCC], MERALCO, again, without giving any notice, cut off power supply to
[BF Homes and PWCCs] five (5) water pumps located in BF Homes Paraaque
and BF Resort Village, in Pamplona, Las Pias City.
15. In its letter dated June 4, 2003 (Annex A), MERALCO threatened to
cut off electric power connections to all of [BF Homes and PWCCs] water pumps
if [BF Homes and PWCC] failed to pay their bills demanded by MERALCO by
June 20, 2003.[6]
BF Homes and PWCC thus cited the following causes of action for their RTC Petition:
16. In refusing to apply [MERALCOs] electric bills against the amounts
that it was ordered to refund to [BF Homes and PWCC] pursuant to the
MERALCO Refund cases and in making the implementation of the refund
ordered by the Supreme Court dependent upon its own will and caprice,
MERALCO acted with utmost bad faith.
17. [BF Homes and PWCC] are clearly entitled to the remedies under the
law to compel MERALCO to consider [BF Homes and PWCCs] electric bills
fully paid by the amounts which MERALCO was ordered to refund to [BF Homes
and PWCC] pursuant to the MERALCO Refund cases, to enjoin MERALCO to
reconnect electric power to all of [BF Homes and PWCCs] water pumps, and to
order MERALCO to desist from further cutting off power connection to [BF
Homes and PWCCs] water pumps.
18. MERALCOs unjust and oppressive acts have cast dishonor upon [BF
Homes and PWCCs] good name and besmirched their reputation for which [BF
Homes and PWCC] should be indemnified by way of moral damages in the
amount of not less than P1,000,000.00.
19. As an example for the public good, to dissuade others from emulating
MERALCOs unjust, oppressive and mercenary conduct, MERALCO should be

directed to pay [BF Homes and PWCC] exemplary damages of at

least P1,000,000.00.
20. MERALCOs oppressive and inequitable conduct forced [BF Homes
and PWCC] to engage the services of counsel to defend their rights and thereby
incur litigation expenses in the amount of at least P500,000.00 for which [BF
Homes and PWCC] should be indemnified.[7]
BF Homes and PWCC additionally prayed that the RTC issue a writ of preliminary injunction
and restraining order considering that:
21. As indicated in its letter dated June 4, 2003 (Annex A), unless
seasonably restrained, MERALCO will cut off electric power connections to all of
[BF Homes and PWCCs] water pumps on June 20, 2003.
22. Part of the reliefs herein prayed for is to restrain MERALCO from
cutting off electric power connections to [BF Homes and PWCCs] water pumps.
23. Unless MERALCOS announced intention to cut off electric power
connections to [BF Homes and PWCCs] water pumps is restrained, [BF Homes
and PWCC] will suffer great and irreparable injury because they would not [be]
able to supply water to their customers.
24. [BF Homes and PWCC] therefore pray that a writ for preliminary
injunction be issued upon posting of a bond in an amount as will be determined
by this Honorable Court.
25. [BF Homes and PWCC] further pray that, in the meantime and
immediately upon the filing of the above captioned Petition, a restraining order be
issued before the matter of preliminary injunction can be heard.[8]
On August 15, 2003, MERALCO filed before the RTC its Answer with Counterclaims
and Opposition to the Application for Writ of Preliminary Injunction[9] of BF Homes and PWCC.
According to MERALCO:
2.2. Both petitioners BF Homes, Incorporated and Philippine Waterworks
Corporation are admittedly the registered customers of [MERALCO] by virtue of
the service contracts executed between them under which the latter undertook to
supply electric energy to the former for a fee. The following twenty-three (23)
Service Identification Nos. (SINs) are registered under the name of BF Homes,
Incorporated: x x x. While the following twenty-one (21) Service Identification
Nos. (SINs) are registered under the name of Philippine Waterworks Construction
Corporation: x x x

xxxx
2.4. The service contracts as well as the terms and conditions of
[MERALCOs] service as approved by BOE [Board of Energy], now ERC
[Energy Regulatory Commission], provide in relevant parts, that [BF Homes and
PWCC] agree as follows:
DISCONTINUANCE OF SERVICE:
The Company reserves the right to discontinue service in case
the customer is in arrears in the payment of bills or for failure
to pay the adjusted bills in those cases where the meter stopped or
failed to register the correct amount of energy consumed, or for
failure to comply with any of these terms and conditions, or in case
of or to prevent fraud upon the Company. Before disconnection is
made in the case of, or to prevent fraud, the Company may adjust
the bill of said customer accordingly and if the adjusted bill is not
paid, the Company may disconnect the same. (Emphasis supplied)
2.5. This contractual right of [MERALCO] to discontinue electric service
for default in the payment of its regular bills is sanctioned and approved by the
rules and regulations of ERB (now the ERC). This right is necessary and
reasonable means to properly protect and enable [MERALCO] to perform and
discharge its legal and contractual obligation under its legislative franchise and
the law. Cutting off service for non-payment by the customers of the regular
monthly electric bills is the only practical way a public utility, such as
[MERALCO], can ensure and maintain efficient service in accordance with the
terms and conditions of its legislative franchise and the law.
xxxx
2.14. Instead of paying their unpaid electric bills and before [MERALCO]
could effect its legal and contractual right to disconnect [BF Homes and PWCCs]
electric services, [BF Homes and PWCC] filed the instant petition to avoid
payment of [MERALCOs] valid and legal claim for regular monthly electric bills.
2.15. [BF Homes and PWCCs] unpaid regular bills totaled P6,551,969.55
covering the May and June 2003 electric bills. x x x
xxxx
2.17. [BF Homes and PWCC] knew that [MERALCO] is already in the
process of implementing the decision of the Supreme Court as to the refund
case. But this refund has to be implemented in accordance with the guidelines and
schedule to be approved by the ERC. Thus [BF Homes and PWCCs] filing of the

instant petition is merely to evade payment of their unpaid electric bills to

[MERALCO].[10]
Hence, MERALCO sought the dismissal of the RTC Petition of BF Homes and PWCC
on the following grounds:
3.1 The Honorable Court has no jurisdiction to award the relief prayed for
by [BF Homes and PWCC] because:
a) The petition is in effect preempting or defeating the power of the ERC
to implement the decision of the Supreme Court.
b) [MERALCO] is a utility company whose business activity is wholly
regulated by the ERC. The latter, being the regulatory agency of the
government having the authority over the respondent, is the one tasked
to approve the guidelines, schedules and details of the refund.
c) The decision of the Supreme Court, dated November 15, 2002, clearly
states that respondent is directed to make the refund to its customers in
accordance with the decision of the ERC (formerly ERB) dated
February 16, 1998. Hence, [MERALCO] has to wait for the schedule
and details of the refund to be approved by the ERC before it can
comply with the Supreme Court decision.
3.2.
[MERALCO] has the right to disconnect the electric service to [BF
Homes and PWCC] in that:
a) The service contracts between [MERALCO] and [BF Homes and
PWCC] expressly authorize the former to discontinue and disconnect
electric services of the latter for their failure to pay the regular electric
bills rendered.
b) It is [MERALCOs] legal duty as a public utility to furnish its service
to the general public without arbitrary discrimination and,
consequently, [MERALCO] is obligated to discontinue and disconnect
electric services to [BF Homes and PWCC] for their refusal or failure
to pay the electric energy actually used by them.[11]
For its compulsory counterclaims, MERALCO prayed that the RTC orders BF Homes
and PWCC to pay MERALCO P6,551,969.55 as actual damages (representing the unpaid
electric bills of BF Homes and PWCC for May and June 2003), P1,500,000.00 as exemplary
damages, P1,500,000.00 as moral damages, and P1,000,000.00 as attorneys fees.

Lastly, MERALCO opposed the application for writ of preliminary injunction of BF

Homes and PWCC because:
I
[MERALCO] HAS THE LEGAL AND CONTRACTUAL RIGHT TO DEMAND
PAYMENT OF THE ELECTRIC BILLS AND, IN CASE OF NON-PAYMENT,
TO DISCONTINUE THE ELECTRIC SERVICES OF [BF HOMES and PWCC]
II
[BF HOMES and PWCC] HAVE NO CLEAR RIGHT WHICH WARRANTS
PROTECTION BY INJUNCTIVE PROCESS
After hearing,[12] the RTC issued an Order on November 21, 2003 granting the application of BF
Homes and PWCC for the issuance of a writ of preliminary injunction. The RTC found that the
records showed that all requisites for the issuance of said writ were sufficiently satisfied by BF
Homes and PWCC. The RTC stated in its Order:
Albeit, this Court respects the right of a public utility company like MERALCO,
being a grantee of a legislative franchise under Republic Act No. 9029, to collect
overdue payments from its subscribers or customers for their respective
consumption of electric energy, such right must, however, succumb to the
paramount substantial and constitutional rights of the public to the usage and
enjoyment of waters in their community. Thus, there is an urgent need for the
issuance of a writ of preliminary injunction in order to prevent social unrest in the
community for having been deprived of the use and enjoyment of waters flowing
through [BF Homes and PWCCs] water pumps.[13]
The RTC decreed in the end:
WHEREFORE, in the light of the foregoing, [BF Homes and PWCCs] prayer for
the issuance of a writ of preliminary injunction is hereby GRANTED. Respondent
Manila Electric Company is permanently restrained from proceeding with its
announced intention to cut-off electric power connection to [BF Homes and
PWCCs] water pumps unless otherwise ordered by this Court.Further, [BF Homes
and PWCC] are hereby ordered to post a bond in the amount of P500,000 to
answer for whatever injury or damage that may be caused by reason of the
preliminary injunction.[14]
The Motion for Reconsideration of MERALCO of the aforementioned Order was denied by the
RTC in another Order issued on January 9, 2004.[15] The RTC reiterated its earlier finding that all

the requisites for the proper issuance of an injunction had been fully complied with by BF
Homes and PWCC, thus:
Records indubitably show that all the requisites for the proper issuance of
an injunction have been fully complied with in the instant case.
It should be noted that a disconnection of power supply would obviously
cause irreparable injury because the pumps that supply water to the BF
community will be without electricity, thereby rendering said community without
water. Water is a basic and endemic necessity of life. This is why its enjoyment
and use has been constitutionally safeguarded and protected. Likewise, a
community without water might create social unrest, which situation this Court
has the mandate to prevent. There is an urgent and paramount necessity for the
issuance of the injunctive writ to prevent serious damage to the guaranteed rights
of [BF Homes and PWCC] and the residents of the community to use and enjoy
water.[16]
The RTC resolved the issue on jurisdiction raised by MERALCO, as follows:
As to the jurisdictional issue raised by respondent MERALCO, it can be
gleaned from a re-evaluation and re-assessment of the records that this Court has
jurisdiction to delve into the case.This Court gave both parties the opportunity to
be heard as they introduced evidence on the propriety of the issuance of the
injunctive writ. It is well-settled that no grave abuse of discretion could be
attributed to its issuance where a party was not deprived of its day in court as it
was heard and had exhaustively presented all its arguments and
defenses. (National Mines and Allied Workers Union vs. Valero, 132 SCRA 578,
1984.)[17]
Aggrieved, MERALCO filed with the Court of Appeals a Petition for Certiorari under Rule 65
of the Rules of Court, docketed as CA-G.R. SP No. 82826. MERALCO sought the reversal of
the RTC Orders dated November 21, 2003 and January 9, 2004 granting a writ of preliminary
injunction in favor of BF Homes and PWCC. MERALCO asserted that the RTC had no
jurisdiction over the application of BF Homes and PWCC for issuance of such a writ.
In its Decision dated October 27, 2005, the Court of Appeals agreed with MERALCO that the
RTC had no jurisdiction to issue a writ of preliminary injunction in Civil Case No. 03-0151, as
said trial court had no jurisdiction over the subject matter of the case to begin with. It
ratiocinated in this wise:
For one, it cannot be gainsaid that the ERC has original and exclusive jurisdiction
over the case. Explicitly, Section 43(u) of Republic Act No. 9136, otherwise
known as the Electric Power Industry Reform Act, (RA 9136), states that the ERC
shall have the original and exclusive jurisdiction over all cases contesting rates,

fees, fines and penalties imposed by the ERC in the exercise of its powers,
functions and responsibilities and over all cases involving disputes between and
among participants or players in the energy sector. Section 4(o) of Rule 3 of the
Implementing Rules and Regulations of RA 9136 likewise provides that the ERC
shall also be empowered to issue such other rules that are essential in the
discharge of its functions as an independent quasi-judicial body.
For another, the respondent judge, instead of presiding over the case, should have
dismissed the same and yielded jurisdiction to the ERC pursuant to the doctrine of
primary jurisdiction. It is plain error on the part of the respondent judge to
determine, preliminary or otherwise, a controversy involving a question which is
within the jurisdiction of an administrative tribunal, especially so where the
question demands the exercise of sound administrative discretion.
Needless to state, the doctrine of primary jurisdiction applies where the
administrative agency, as in the case of ERC, exercises its quasi-judicial and
adjudicatory function. Thus, in cases involving specialized disputes, the practice
has been to refer the same to an administrative agency of special competence
pursuant to the doctrine of primary jurisdiction. The courts will not determine a
controversy involving a question which is within the jurisdiction of the
administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and intricate matters of fact,
and a uniformity of ruling is essential to comply with the premises of the
regulatory statute administered.
Verily, the cause of action of [BF Homes and PWCC] against [MERALCO]
originates from the Meralco Refund Decision as it involves the perceived right of
the former to compel the latter to set-off or apply their refund to their present
electric bill. The issue delves into the right of the private respondents to collect
their refund without submitting to the approved schedule of the ERC, and in effect
give unto themselves preferential right over other equally situated consumers of
[MERALCO]. Perforce, the ERC, as can be gleaned from the afore-stated legal
provisions, has primary, original and exclusive jurisdiction over the said
controversy.
Indeed, the respondent judge glaringly erred in enjoining the right of
[MERALCO] to disconnect its services to [BF Homes and PWCC] on the premise
that the court has jurisdiction to apply the provisions on compensation or set-off
in this case. Although [MERALCO] recognizes the right of [BF Homes and
PWCC] to the refund as provided in the Meralco Refund Decision, it is the ERC
which has the authority to implement the same according to its approved
schedule, it being a dispute arising from the exercise of its jurisdiction.

Moreover, it bears to stress that the Meralco Refund Decision was brought into
fore by the Decision dated 16 February 1998 of the ERC (then Energy Regulatory
Board) granting refund to [MERALCOs] consumers. Being the agency of origin,
the ERC has the jurisdiction to execute the same. Besides, as stated, it is
empowered to promulgate rules that are essential in the discharge of its functions
as an independent quasi-judicial body.[18]
The dispositive portion of the judgment of the appellate court reads:
WHEREFORE, the foregoing considered, the instant petition is
hereby GRANTED and the assailed Orders REVERSED and SET
ASIDE. Accordingly, the writ of injunction against [MERALCO] is
hereby DISSOLVED. No costs.[19]
In a Resolution dated February 7, 2006, the Court of Appeals denied the Motion for
Reconsideration of BF Homes and PWCC for failing to raise new and persuasive and meritorious
arguments.
Now, BF Homes and PWCC come before this Court via the instant Petition, raising the
following assignment of errors:
1. The Court of Appeals ERRED in saying that the respondent judge committed
grave abuse of discretion by issuing the disputed writ of injunction pending
the merits of the case including the issue of subject matter jurisdiction.
2. The Court of Appeals ERRED in saying that the ERC under the doctrine of
primary jurisdiction has the original and EXCLUSIVE jurisdiction to take
cognizance of a petition for injunction to prevent electrical disconnection to a
customer entitled to a refund.
3. The Court of Appeals ERRED in NOT SAYING that the ERC as a quasijudicial body under RA 9136 has no power to issue any injunctive relief or
remedy to prevent disconnection.
4. The Court of Appeals ERRED in not resolving the issue as to the violation of
MERALCO of a standing injunction order while the case remains undecided.
[20]

At the core of the Petition is the issue of whether jurisdiction over the subject matter of
Civil Case No. 03-0151 lies with the RTC or the Energy Regulatory Commission (ERC). If it is
with the RTC, then the said trial court also has jurisdiction to issue the writ of preliminary
injunction against MERALCO. If it is with the ERC, then the RTC also has no jurisdiction to act

on any incidents in Civil Case No. 03-0151, including the application for issuance of a writ of
preliminary injunction of BF Homes and PWCC therein.
BF Homes and PWCC argued that due to the threat of MERALCO to disconnect electric
services, BF Homes and PWCC had no other recourse but to seek an injunctive remedy from the
RTC under its general jurisdiction. The merits of Civil Case No. 03-0151 was not yet in issue,
only the propriety of issuing a writ of preliminary injunction to prevent an irreparable
injury. Even granting that the RTC has no jurisdiction over the subject matter of Civil Case No.
03-0151, the ERC by enabling law has no injunctive power to prevent the disconnection by
MERALCO of electric services to BF Homes and PWCC.
The Petition has no merit.
Settled is the rule that jurisdiction is conferred only by the Constitution or the law.
Republic v. Court of Appeals[22] also enunciated that only a statute can confer jurisdiction on
courts and administrative agencies.
[21]

Related to the foregoing and equally well-settled is the rule that the nature of an action
and the subject matter thereof, as well as which court or agency of the government has
jurisdiction over the same, are determined by the material allegations of the complaint in relation
to the law involved and the character of the reliefs prayed for, whether or not the
complainant/plaintiff is entitled to any or all of such reliefs. A prayer or demand for relief is not
part of the petition of the cause of action; nor does it enlarge the cause of action stated or change
the legal effect of what is alleged. In determining which body has jurisdiction over a case, the
better policy is to consider not only the status or relationship of the parties but also the nature of
the action that is the subject of their controversy.[23]
In Manila Electric Company v. Energy Regulatory Board,[24] the Court traced the
legislative history of the regulatory agencies which preceded the ERC, presenting a summary of
these agencies, the statutes or issuances that created them, and the extent of the jurisdiction
conferred upon them, viz:
1. The first regulatory body, the Board of Rate Regulation (BRR), was
created by virtue of Act No. 1779. Its regulatory mandate under Section 5 of the
law was limited to fixing or regulating rates of every public service corporation.
2. In 1913, Act No. 2307 created the Board of Public Utility
Commissioners (BPUC) to take over the functions of the BRR. By express
provision of Act No. 2307, the BPUC was vested with jurisdiction, supervision
and control over all public utilities and their properties and franchises.
3. On November 7, 1936, Commonwealth Act (C.A.) No. 146, or the
Public Service Act (PSA), was passed creating the Public Service Commission
(PSC) to replace the BPUC. Like the BPUC, the PSC was expressly granted
jurisdiction, supervision and control over public services, with the concomitant
authority of calling on the public force to exercise its power, to wit:

SEC. 13. Except as otherwise provided herein, the

Commission shall have general supervision and regulation
of, jurisdiction and control over, all public utilities, and also
over their property, property rights, equipment, facilities and
franchises so far as may be necessary for the purpose of carrying
out the provisions of this Act, and in the exercise of its authority it
shall have the necessary powers and the aid of the public force x x
x.
Section 14 of C.A. No. 146 defines the term public service or public
utility as including every individual, copartnership, association, corporation or
joint-stock company, . . . that now or hereafter may own, operate, manage or
control within the Philippines, for hire or compensation, any common carrier, x x
x, electric light, heat, power, x x x, when owned, operated and managedfor public
use or service within the Philippines x x x. Under the succeeding Section 17(a),
the PSC has the power even without prior hearing
(a) To investigate, upon its own initiative, or upon
complaint in writing, any matter concerning any public service as
regards matters under its jurisdiction; to require any public service
to furnish safe, adequate and proper service as the public interest
may require and warrant, to enforce compliance with any standard,
rule, regulation, order or other requirement of this Act or of the
Commission, x x x.
4. Then came Presidential Decree (P.D.) No. 1, reorganizing the national
government and implementing the Integrated Reorganization Plan. Under the
reorganization plan, jurisdiction, supervision and control over public services
related to electric light, and power heretofore vested in the PSC were transferred
to the Board of Power and Waterworks (BOPW).
Later, P.D. No. 1206 abolished the BOPW. Its powers and function relative
to power utilities, including its authority to grant provisional relief, were
transferred to the newly-created Board of Energy (BOE).
5. On May 8, 1987, then President Corazon C. Aquino issued E.O. No.
172 reconstituting the BOE into the ERB, transferring the formers functions and
powers under P.D. No. 1206 to the latter and consolidating in and entrusting on
the ERB all the regulatory and adjudicatory functions covering the energy
sector. Section 14 of E.O. No. 172 states that (T)he applicable provisions of
[C.A.] No. 146, as amended, otherwise known as the Public Service Act; x x x
and [P.D.] No. 1206, as amended, creating the Department of Energy, shall
continue to have full force and effect, except insofar as inconsistent with this
Order.[25]

Thereafter, on June 8, 2001, Republic Act No. 9136, known as the Electric Power
Industry Reform Act of 2001 (EPIRA), was enacted, providing a framework for restructuring the
electric power industry. One of the avowed purposes of the EPIRA is to establish a strong and
purely independent regulatory body. The Energy Regulatory Board (ERB) was abolished and its
powers and functions not inconsistent with the provision of the EPIRA were expressly
transferred to the ERC.[26]
The powers and functions of the ERB not inconsistent with the EPIRA were transferred
to the ERC by virtue of Sections 44 and 80 of the EPIRA, which read:
Sec. 44. Transfer of Powers and Functions. The powers and functions of
the Energy Regulatory Board not inconsistent with the provisions of this Act are
hereby transferred to the ERC.The foregoing transfer of powers and functions
shall include all applicable funds and appropriations, records, equipment, property
and personnel as may be necessary.
Sec. 80. Applicability and Repealing Clause. The applicability provisions
of Commonwealth Act No. 146, as amended, otherwise known as the Public
Service Act. Republic Act 6395, as amended, revising the charter of NPC;
Presidential Decree 269, as amended, referred to as the National Electrification
Decree; Republic Act 7638, otherwise known as the Department of Energy Act of
1992; Executive Order 172, as amended, creating the ERB; Republic Act 7832
otherwise known as the Anti-Electricity and Electric Transmission
Lines/Materials Pilferage Act of 1994; shall continue to have full force and effect
except insofar as they are inconsistent with this Act.
The provisions with respect to electric power of Section 11(c) of Republic
Act 7916, as amended, and Section 5(f) of Republic Act 7227, are hereby repealed
or modified accordingly.
Presidential Decree No. 40 and all laws, decrees, rules and regulations, or
portions thereof, inconsistent with this Act are hereby repealed or modified
accordingly.
In addition to the foregoing, the EPIRA also conferred new powers upon the ERC under
Section 43, among which are:
SEC. 43. Functions of the ERC. The ERC shall promote competition,
encourage market development, ensure customer choice and penalize abuse of
market power in the restructured electricity industry. In appropriate cases, the
ERC is authorized to issue cease and desist order after due notice and
hearing. Towards this end, it shall be responsible for the following key functions
in the restructured industry:

xxxx
(f) In the public interest, establish and enforce a methodology for setting
transmission and distribution wheeling rates and retail rates for the captive market
of a distribution utility, taking into account all relevant considerations, including
the efficiency or inefficiency of the regulated entities. The rates must be such as to
allow the recovery of just and reasonable costs and a reasonable return on rate
base (RORB) to enable the entity to operate viably. The ERC may adopt
alternative forms of internationally-accepted rate-setting methodology as it may
deem appropriate. The rate-setting methodology so adopted and applied must
ensure a reasonable price of electricity. The rates prescribed shall be nondiscriminatory. To achieve this objective and to ensure the complete removal of
cross subsidies, the cap on the recoverable rate of system losses prescribed in
Section 10 of Republic Act No. 7832, is hereby amended and shall be replaced by
caps which shall be determined by the ERC based on load density, sales mix, cost
of service, delivery voltage and other technical considerations it may
promulgate. The ERC shall determine such form of rate-setting methodology,
which shall promote efficiency. x x x.
xxxx
(u) The ERC shall have the original and exclusive jurisdiction over all
cases contesting rates, fees, fines and penalties imposed by the ERC in the
exercise of the abovementioned powers, functions and responsibilities and over
all cases involving disputes between and among participants or players in the
energy sector.
All notices of hearings to be conducted by the ERC for the purpose of
fixing rates or fees shall be published at least twice for two successive weeks in
two (2) newspapers of nationwide circulation.
A careful review of the material allegations of BF Homes and PWCC in their Petition
before the RTC reveals that the very subject matter thereof is the off-setting of the amount of
refund they are supposed to receive from MERALCO against the electric bills they are to pay to
the same company. This is squarely within the primary jurisdiction of the ERC.
The right of BF Homes and PWCC to refund, on which their claim for off-setting
depends, originated from the MERALCO Refund cases. In said cases, the Court (1) authorized
MERALCO to adopt a rate adjustment in the amount of P0.017 per kilowatthour, effective with
respect to its billing cycles beginning February 1994; and (2) ordered MERALCO to refund to its
customers or credit in said customers favor for future consumption P0.167 per kilowatthour,
starting with the customers billing cycles that begin February 1998, in accordance with the ERB
Decision dated February 16, 1998.
It bears to stress that in the MERALCO Refund cases, this Court only affirmed the
February 16, 1998 Decision of the ERB (predecessor of the ERC) fixing the just and reasonable

rate for the electric services of MERALCO and granting refund to MERALCO consumers of the
amount they overpaid. Said Decision was rendered by the ERB in the exercise of its jurisdiction
to determine and fix the just and reasonable rate of power utilities such as MERALCO.
Presently, the ERC has original and exclusive jurisdiction under Rule 43(u) of the EPIRA
over all cases contesting rates, fees, fines, and penalties imposed by the ERC in the exercise of
its powers, functions and responsibilities, and over all cases involving disputes between and
among participants or players in the energy sector. Section 4(o) of the EPIRA Implementing
Rules and Regulation provides that the ERC shall also be empowered to issue such other rules
that are essential in the discharge of its functions as in independent quasi-judicial body.
Indubitably, the ERC is the regulatory agency of the government having the authority and
supervision over MERALCO. Thus, the task to approve the guidelines, schedules, and details of
the refund by MERALCO to its consumers, to implement the judgment of this Court in the
MERALCO Refund cases, also falls upon the ERC. By filing their Petition before the RTC, BF
Homes and PWCC intend to collect their refund without submitting to the approved schedule of
the ERC, and in effect, enjoy preferential right over the other equally situated MERALCO
consumers.
Administrative agencies, like the ERC, are tribunals of limited jurisdiction and, as such,
could wield only such as are specifically granted to them by the enabling statutes. In relation
thereto is the doctrine of primary jurisdiction involving matters that demand the special
competence of administrative agencies even if the question involved is also judicial in
nature. Courts cannot and will not resolve a controversy involving a question within the
jurisdiction of an administrative tribunal, especially when the question demands the sound
exercise of administrative discretion requiring special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of fact.The court cannot
arrogate into itself the authority to resolve a controversy, the jurisdiction of which is initially
lodged with the administrative body of special competence.[27]
Since the RTC had no jurisdiction over the Petition of BF Homes and PWCC in Civil
Case No. 03-0151, then it was also devoid of any authority to act on the application of BF
Homes and PWCC for the issuance of a writ of preliminary injunction contained in the same
Petition. The ancillary and provisional remedy of preliminary injunction cannot exist except only
as an incident of an independent action or proceeding.[28]
Incidentally, BF Homes and PWCC seemed to have lost sight of Section 8 of Executive
Order No. 172 which explicitly vested on the ERB, as an incident of its principal function, the
authority to grant provisional relief, thus:
Section 8. Authority to Grant Provisional Relief. The Board may, upon
the filing of an application, petition or complaint or at any stage thereafter and
without prior hearing, on the basis of supporting papers duly verified or
authenticated, grant provisional relief on motion of a party in the case or on its
own initiative, without prejudice to a final decision after hearing, should the
Board find that the pleadings, together with such affidavits, documents and other

evidence which may be submitted in support of the motion, substantially support

the provisional order: Provided, That the Board shall immediately schedule and
conduct a hearing thereon within thirty (30) days thereafter, upon publication and
notice to all affected parties.
The aforequoted provision is still applicable to the ERC as it succeeded the ERB, by
virtue of Section 80 of the EPIRA. A writ of preliminary injunction is one such provisional relief
which a party in a case before the ERC may move for.
Lastly, the Court herein already declared that the RTC not only lacked the jurisdiction to
issue the writ of preliminary injunction against MERALCO, but that the RTC actually had no
jurisdiction at all over the subject matter of the Petition of BF Homes and PWCC in Civil Case
No. 03-0151. Therefore, in addition to the dissolution of the writ of preliminary injunction issued
by the RTC, the Court also deems it appropriate to already order the dismissal of the Petition of
BF Homes and PWCC in Civil Case No. 03-0151 for lack of jurisdiction of the RTC over the
subject matter of the same. Although only the matter of the writ of preliminary injunction was
brought before this Court in the instant Petition, the Court is already taking cognizance of the
issue on the jurisdiction of the RTC over the subject matter of the Petition. The Court may motu
proprio consider the issue of jurisdiction. The Court has discretion to determine whether the RTC
validly acquired jurisdiction over Civil Case No. 03-0151 since, to reiterate, jurisdiction over the
subject matter is conferred only by law. Jurisdiction over the subject matter cannot be acquired
through, or waived by, any act or omission of the parties. Neither would the active participation
of the parties nor estoppel operate to confer jurisdiction on the RTC where the latter has none
over a cause of action.[29] Indeed, when a court has no jurisdiction over the subject matter, the
only power it has is to dismiss the action.[30]
WHEREFORE, the instant Petition for Review is DENIED. The Decision dated
October 27, 2005 of the Court of Appeals in CA-G.R. SP No. 82826 is AFFIRMED with
the MODIFICATION that the Regional Trial Court, Branch 202 of Las Pias City,
is ORDERED to dismiss the Petition [With Prayer for the Issuance of Writ of Preliminary
Injunction and for the Immediate Issuance of Restraining Order] of BF Homes, Inc. and
Philippine Waterworks and Construction Corporation in Civil Case No. 03-0151. Costs against
BF Homes, Inc. and Philippine Waterworks and Construction Corporation.
SO ORDERED.