Political Law Cases

G.R. No.
160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY
SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it
may appear to be, over the determination by the independent branches of government of the nature, scope and extent
of their respective constitutional powers where the Constitution itself provides for the means and bases for its
resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the
relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and
the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent
cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of the instant
petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the
House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof
is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by
a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this
controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-
constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of
the public interest lie in adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the
inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no
means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it
by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution
to temper the official acts of each of these three branches must be given effect without destroying their indispensable
co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they are to insure that
governmental power is wielded only for the good of the people, mandate a relationship of interdependence and
coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are
harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the
people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
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SECTION 1. Public office is a public trust. 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.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution
with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall
be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of
all the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any
office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.
(Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of
Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment
Rules) on November 28, 2001, superseding the previous House Impeachment Rules1 approved by the 11th Congress.
The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following
tabulation:
11TH CONGRESS RULES
12TH CONGRESS NEW RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for
impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement
2
by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all
the Members of the House.
RULE V
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL
Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified
complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a
resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed
initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as
the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said
Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.
In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least
one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of
such verified complaint or resolution of impeachment with the Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once
within the period of one (1) year.
Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date
impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as
such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner
of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund
(JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first impeachment complaint)
against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the
Constitution, betrayal of the public trust and other high crimes."6 The complaint was endorsed by Representatives Rolex
T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on
August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in
form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance.10 To date, the
Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2)
of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after
the House Committee on Justice voted to dismiss it, the second impeachment complaint11 was filed with the Secretary
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General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative
inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a
"Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of
Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the
filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the
Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a
period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated
Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised
in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a
victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto
had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved
on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III,
Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to
promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of
Representatives from proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the
case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ
"perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief
Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the
Senate has accepted the same, from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and
members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it
involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint,
pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to
bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development
Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in
their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting,
approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and
Nazareno from transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that,
as members of the House of Representatives, they have a legal interest in ensuring that only constitutional
impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment
complaint and any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms
of senseless spending of taxpayers' money and that they have an obligation to protect the Supreme Court, the Chief
Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a
class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances
emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from
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taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition
commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-
petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which
does not state what its nature is, that the filing of the second impeachment complaint involves paramount public
interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association
and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their
petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of
Representatives from proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional
Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of
Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the
House of Representatives be permanently enjoined from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the
House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and
Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in
behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of
Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that
this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of
Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for
Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he
has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging
their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or
giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents
Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal
power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of
powers of the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they
have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of
Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the
second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second
impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in
accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and
audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second
impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition
5
that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2)
respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and
Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or,
in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed
before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent
the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment
complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the
November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought
similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling
for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the
second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of
Representatives adjourned for lack of quorum,19 and as reflected above, to date, the Articles of Impeachment have yet
to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which
were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected
their offer. Justice Panganiban inhibited himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a)
consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral
arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others
acting for and in their behalf to refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its
co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to
hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex
Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the
Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the
Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the
respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier
consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and
(c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation
stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that
as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had
6
not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263,
160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the
ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the
dismissal of all the petitions as the matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for
Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for
Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also
filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295,
and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and
Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors
Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an
Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what
time; and whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the
myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and
determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review
extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise
of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now
be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of
the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our
present 1987 Constitution:
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SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936
case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose provisions, unlike the
present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power
includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within
the power of our people, acting through their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to operate and function as a
harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment,
and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of
its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one
and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of
article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota
presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the government.24 (Italics in the
original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the
different branches of government and "to direct the course of government along constitutional channels" is inherent in
all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual
controversies involving rights which are legally demandable and enforceable."26
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Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its
Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial review was
first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made
in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as
well as other departments, are bound by that instrument.28 (Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate constitutionally infirm acts.29 And as pointed out by noted political law
professor and former Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the
Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system
of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our
republican form of government and insures that its vast powers are utilized only for the benefit of the people for which
it serves.
The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and
underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control
between them."33 To him, "[j]udicial review is the chief, indeed the only, medium of participation or instrument of
intervention of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or
instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time
into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and
rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief
Justice Constitutional Commissioner Roberto Concepcion:
xxx
9
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact,
it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by
the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor
general set up the defense of political questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the government set up the defense of
political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request
an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the
martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters constitute a political question.35 (Italics in the original;
emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution
itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning
except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,36 this
Court, speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much
as possible should be understood in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in
accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive
Secretary38 in this wise:
10
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is
to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A.
Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,42
this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely
for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of that great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution
and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make the words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case
of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in
the constitutional convention "are of value as showing the views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer
to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers's understanding thereof.46 (Emphasis and
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of
judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument
that the Constitution has excluded impeachment proceedings from the coverage of judicial review.
11
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which
cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment
proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases48 (1)
entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's power to determine
constitutional questions relative to impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review,
respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities,
principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the exercise of judicial
review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to
different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under
which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in
fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to show the intent to isolate
judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment
cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional
commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial
review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional
questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine
constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its
origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father
Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is
that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature,
that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a
power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the
power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power
of impeachment to the House of Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise of
such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment of one and the same official.
Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the
principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively,
recognizing full well the perils of judicial willfulness and pride."56
But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution?
This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress.
Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,57 "judicially discoverable
standards" for determining the validity of the exercise of such discretion, through the power of judicial review.
12
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that
the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of
petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the
exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action.
Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to
inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the
exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate
on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that
when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a
resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman
as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng
v. Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments was
based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the
power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled
that confirmation by the National Assembly of the election of any member, irrespective of whether his election is
contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of
the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment
proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and
"one section is not to be allowed to defeat another."67 Both are integral components of the calibrated system of
independence and interdependence that insures that no branch of government act beyond the powers assigned to it by
the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred
by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3)
the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota
expressed through their representatives in the executive and legislative departments of the government.68 (Italics in the
original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party
has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of
difficult constitutional questions.69
13
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since
only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and
Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past,
accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest70
and transcendental importance,71 and that procedural matters are subordinate to the need to determine whether or
not the other branches of the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of
Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real
party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who,
for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a
concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant
by locus standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is
important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from
questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions
require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the
judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters
who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or
injured by the judgment, or the 'party entitled to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of
Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by
the alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met
have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or
is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a public right,78 the
mere fact that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that
public money is being deflected to any improper purpose, or that there is a wastage of public funds through the
14
enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial review, however, he
must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.81 This Court
opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of
the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public
funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his
prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office.83
While an association has legal personality to represent its members,84 especially when it is composed of substantial
taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated Bar of the Philippines
or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly
true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as precedents.86 It, therefore, behooves this
Court to relax the rules on standing and to resolve the issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently
numerous to fully protect the interests of all concerned87 to enable the court to deal properly with all interests involved
in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata
principle, binding on all members of the class whether or not they were before the court.89 Where it clearly appears
that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens
and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty.
Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by
former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct
and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the
issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party
should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of
such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any
interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a
legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an
officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners Candelaria, et.
al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no
15
objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the
Motion for Leave of Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in
G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the
minority members of the House of Representatives is successful," this Court found the requisites for intervention had
been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-
in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the second impeachment
complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II
Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to
intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and
arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction
as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court
once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to
Intervene was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a
taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec,93
to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do
said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection
against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for
adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a
court may come into the picture."96 Only then may the courts pass on the validity of what was done, if and when the
latter is challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against
the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality
of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been
filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the
prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v.
Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former
Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this
16
time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the
House and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial
notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their
signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional
questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the
Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can
raise the issue of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by
itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself,
obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2)
and (3) of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to
this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is
clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment
proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII
of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of
policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on
its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover
of the political question doctrine and refused to exercise its power of judicial review.100 In other cases, however,
despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988
case of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence,
in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a
Constitution is a political question, it being a question decided by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain
cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to
clarify this Court's power of judicial review and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the
weakest among the three major branches of the service. Since the legislature holds the purse and the executive the
sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and
appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without
exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on
the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
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I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact,
it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by
the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor
general set up the defense of political questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the government set up the defense of
political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request
an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the
martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members
of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on
the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22,
although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published anything about it. In fact, the media could not publish any
story not only because our main writers were already incarcerated, but also because those who succeeded them in their
jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had
begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the
fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971
Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner
Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they
finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months.
The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President
issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which
prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably
to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January
1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of
the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So,
the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not
announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections,
but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The
questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a
plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When
the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of
the President declaring that the new Constitution was already in force because the overwhelming majority of the votes
cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded
to the session room where the case was being heard. I then informed the Court and the parties the presidential
proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by
the government was that the issue was a political question and that the court had no jurisdiction to entertain the case.
xxx
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The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the
Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified
of any referendum in their respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had
been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a
plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they
dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been
a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is
judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights
which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a
judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but
they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or
enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its
own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid
or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the
subject of the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of
judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court
alone but also in other lower courts as may be created by law.
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MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the
government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is
not a political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new
numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it
says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not
only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political
question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to
do away with "truly political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers
to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions
which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number
of cases taken jurisdiction over questions which are not truly political following the effectivity of the present
Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
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The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into
areas which the Court, under previous constitutions, would have normally left to the political departments to decide.106
xxx
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as
held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the
rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of
the principle in appropriate cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if
we were to assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political
question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political
questions, however. Identification of these two species of political questions may be problematic. There has been no
clear standard. The American case of Baker v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to
a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment
of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for
resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of
one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is radically different
from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the
answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the
government properly acted within such limits. This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the
Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an
unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary.
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IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3, Article XI of the Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction.
More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an
impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely,
other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the
1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of
betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon this court to decide a
non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be
avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also
presents some other ground upon which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court invalidated Sections
13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must
have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the
decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or
crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment
complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be
made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this
Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law
broader than is required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment
complaint is invalid since it directly resulted from a Resolution120 calling for a legislative inquiry into the JDF, which
Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules
and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a
violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of
the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that the issue
of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the
validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion,
22
require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in
general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this
Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of
legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its
exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation
must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the
Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's
self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of
petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified
and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the
provisions of Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in
that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all the Members of the
House." With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged
to have verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification" of the
Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second
impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the
House of Representatives. Not having complied with this requirement, they concede that the second impeachment
complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of
the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the
Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment
23
complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong
likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such
resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the
constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as
the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra,
intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render
for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as
well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is
made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al.,
adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's
decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the
instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as
a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment
court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of
judicial review includes the power of review over justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not
assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment."125 But this
argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be
declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to
which the controversy may be referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII,
Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance
of the instant petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must
rule upon the challenge because no other office has the authority to do so.128 On the occasion that this Court had been
an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the
discharge of an unavoidable duty and, as always, with detachment and fairness."129 After all, "by [his] appointment to
the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass
upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render
justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough
to resist the temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v.
Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion
for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-
87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced
24
the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to
decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his
other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership
of Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it
alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been
unaware of the possibility of an election contest that would involve all Senatorselect, six of whom would inevitably
have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when
once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or
mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify
himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience
dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of
the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators
and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto
depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a
deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction
of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the
deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass
disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of
judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining
because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real,
earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party
beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not
the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the
case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to
be applied.'
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4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also
present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus,
if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state
challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can
be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to
one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of
his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a
citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its
citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its
benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible
by which the question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the
United States Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review
of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the
need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would
be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the
vote of Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging that failure
of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode
public confidence and faith in the judiciary.
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Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of
the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all
impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not
precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme
Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also
political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's
prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the
other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough votes
either to grant the petitions, or to sustain respondent's claims,"140 the pre-existing constitutional order was disrupted
which paved the way for the establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would
behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the
land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and
risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to
wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious
or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to
exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the
exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are
guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by
governments, political parties, or even the interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the
House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term
"initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective
body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file"
because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by
a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a
resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same
officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is,
therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually
became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by
Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner
Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at
which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt
27
that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint
and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As
Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate
the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle
and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those
deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the
filing of the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House
reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated
but rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there
is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the
intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on
impeachment, I understand there have been many proposals and, I think, these would need some time for Committee
action.
However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings,
copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the
Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed
before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the
impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting
on the report, transmittal referral to the Senate, trial and judgment by the Senate.
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MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment
submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing
of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the
Articles of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on
the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard
Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of
Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only
approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging
these words because we have to be very technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are
with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate
this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration
will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of
Representatives of the United States regarding impeachment.
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I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from
lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on
line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment"
and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the
Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the
Committee or to override its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is
concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it
the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the
case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again,
Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform
procedure of the House of Representatives of the United States Congress. Thank you, Madam President.143 (Italics in
the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the
Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief,
Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment
proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for
all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the
House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by
the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of
the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both
adding, however, that the filing must be accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the
constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year,
(Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is
"impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of
reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case
is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a
vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive
power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a
case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To
initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun.
It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps:
(1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen
endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper
Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or
upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the
processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the
29
Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the
Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment
court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the
Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the
trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by
the Committee, because something prior to that has already been done. The action of the House is already a further
step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified
complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series
of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the
floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary to initiate
impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does
not initiate impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not
found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same
official more than once within a period of one year," it means that no second verified complaint may be accepted and
referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the
people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into
ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers
confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment proceedings because
Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment,"
This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating
"impeachment cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional
Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint
coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment
complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of
Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once
an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated
(1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in
substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified
complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a
meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as
an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their
personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue
expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of
debates and proceedings." Further citing said case, he states that this Court likened the former members of the
30
Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know
more about the real meaning because of the latter's balanced perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of
this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief
Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied
on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the
deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it
and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the
assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out
the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to
effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for
other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution
with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall
be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had
absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of
the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules
and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary
of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects
persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152
quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the
Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional
restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or
method of proceeding established by the rule and the result which is sought to be attained. It is only within these
limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De
Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that
in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the
31
principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on
cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in
Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional
rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears
that in pursuance of this authority the House had, prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a
quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to
the Speaker with the names of the members voting, and be counted and announced in determining the presence of a
quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not
what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what
matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not
by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation
between the mode or method of proceedings established by the rule and the result which is sought to be attained. But
within these limitations all matters of method are open to the determination of the House, and it is no impeachment of
the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity
of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one
which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship
with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the
mere invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question
defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was
intentionally cobbled to empower courts "x x x to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power
is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded
and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of
government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act
of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack
32
or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the
other branches of government despite their more democratic character, the President and the legislators being elected
by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade
the powers of this court vis--vis the other branches of government. This provision was dictated by our experience
under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in
government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of
discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our
distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions,
this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution,
there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should
not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the
present.
I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at
bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not
be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield
it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened
other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its
interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case
at bar, the lessons of our own history should provide us the light and not the experience of foreigners.157 (Italics in the
original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the
violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court may not
decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S.
Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It
adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever
is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a
constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power
of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions
articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment
proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the
Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give
the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
33
Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the
House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same
official within a one year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice
Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year
period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of
our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy.
Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the
past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have
fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the
issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice,
took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and denominations of faith offered suggestions for a
return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived
resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was
specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint against the subject respondent public official. When the
present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was
made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint"
aimed at halting the Court from any move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the
Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and
duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a
provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of
powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the
Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up
a regime of judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of
whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-
year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn
justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent
effects of having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against
the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members'
interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth.
34
The institution that is the Supreme Court together with all other courts has long held and been entrusted with the
judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court
has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid
by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and
the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a
government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the
inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its
members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all
men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience
to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting
that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief
Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does
not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective
of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case
against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a
solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this
Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible
of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon
each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved
by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment
complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is
barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
35
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment
and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice;
FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of
Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as
Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority,
respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July
25, 1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position,
hold not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions
other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at
least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary,
or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which
provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
36
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along
with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of
the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as
well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition
to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from
receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned
positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they
may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5
declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office,
including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in
the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8,
paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions;
and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress
convened on July 27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article
I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public
officers one, the President and her official family, and the other, public servants in general allegedly "abolished the
clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs
for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the
leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the first official
construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB
of the Constitution, involving the same subject of appointments or designations of an appointive executive official to
positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No.
284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that
DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O.
No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed
by the primary functions of the public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners,
by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other
office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an
ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
37
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their
deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a
Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated
an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to
Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials
in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise
allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is
to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies
or boards of various government agencies and instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative powers in this country were exercised by former President
Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes
of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of
office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to
the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned
and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of
Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13
38
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should
draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by
Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987
Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous
practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition
against the holding of multiple offices or employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent
of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as
holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution
on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section
13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any
time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled
corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
pertains to an office or employment in the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-
President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is
absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing
prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other
public officials or employees such as the Members of Congress, members of the civil service in general and members of
the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class
by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and,
therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other
39
words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the
Vice- President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest
intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the
government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions
found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the
Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on
the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on
the other, may hold any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative.
This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other
office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1)
of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any public office or position
during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13,
Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the Cabinet,15 and to act as President without
relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify.16 Such absurd
consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1)
of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto.
In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing on
a particular subject should be considered and interpreted together as to effectuate the whole purpose of the
Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be
made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances
provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said
officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To
characterize these posts otherwise would lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986).
40
Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these
agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any
other appointment or authority than that conferred by the office." 27 An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need only be designated by the respective department heads. With
the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must
already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The
same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it
should be, because the representatives so designated merely perform duties in the Board in addition to those already
performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be
closely related to, but must be required by the official's primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board,
and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and
the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of
the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer
on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships
or directorships in government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among
the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws
41
affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power
vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions
being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies
or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would
be supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law,
without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It should be obvious that
if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled
to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the
Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to
Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by
the functions of his position," 36 express reference to certain high-ranking appointive public officials like members of the
Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there
are instances when although not required by current law, membership of certain high-ranking executive officials in other
offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner
Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is
by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the
proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been approved
on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more specific
prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after the
draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the
General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion
was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general
rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition
in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in
then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-
B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed,"
by the primary functions may be considered as not constituting "any other office."
42
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1wphi1 Debates in the constitutional convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not
talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the framers's understanding
thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or
employment in the government, except in those cases specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by
the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the
debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal
opinions which cannot override the constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position
to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by
virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices
or employment held by virtue of legislation, including chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among
too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself
too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure, officer, a de facto
officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any
43
one for such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
[G.R. No. 122156. February 3, 1997]
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State shall give preference to qualified Filipinos,[1] is invoked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila
Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation
for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization
program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through
public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual
strategic partner, is to provide management expertise and/or an international marketing/reservation system, and
financial support to strengthen the profitability and performance of the Manila Hotel.[2] In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation,
which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm,
with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more
than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995)
or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for
the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995);
and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the Government
Corporate Counsel) are obtained.[3]
44
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the necessary
contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share
tendered by Renong Berhad.[4] In a subsequent letter dated 10 October 1995 petitioner sent a managers check issued
by Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and
that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First
Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel
has been identified with the Filipino nation and has practically become a historical monument which reflects the
vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the
nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people.
To all intents and purposes, it has become a part of the national patrimony.[6] Petitioner also argues that since 51% of
the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a
government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism
industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of
the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution,
applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also
unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a
statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) x x x x
Thus, for the said provision to operate, there must be existing laws to lay down conditions under which business may be
done.[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony
which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What is
more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality
of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still
inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor
the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the
national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per
share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only
45
takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and
the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not
exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the
petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have
an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation.[10] It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all private rights must be determined and all public
authority administered.[11] Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the
legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and securing certain fundamental and
inalienable rights of citizens.[12] A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and
have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to
that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a
legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore
and practically nullify the mandate of the fundamental law.[14] This can be cataclysmic. That is why the prevailing view
is, as it has always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x x x x
Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote
from discussions on the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of
PREFERENCE is given to QUALIFIED FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-vis
Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word QUALIFIED?
46
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED because the existing laws or
prospective laws will always lay down conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-
executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting further laws to
enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details
may be left to the legislature without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers
directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or
place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to
or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any
legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more
available.[17] Subsequent legislation however does not necessarily mean that the subject constitutional provision is not,
by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of
the first and third paragraphs of the same section which undoubtedly are not self-executing.[18] The argument is
flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage
the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part
and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles
and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation,
not as judicially enforceable rights - are simply not in point. Basco v. Philippine Amusements and Gaming
Corporation[20] speaks of constitutional provisions on personal dignity,[21] the sanctity of family life,[22] the vital role
of the youth in nation-building,[23] the promotion of social justice,[24] and the values of education.[25] Tolentino v.
Secretary of Finance[26] refers to constitutional provisions on social justice and human rights[27] and on education.[28]
Lastly, Kilosbayan, Inc. v. Morato[29] cites provisions on the promotion of general welfare,[30] the sanctity of family
life,[31] the vital role of the youth in nation-building[32] and the promotion of total human liberation and
development.[33] A reading of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only
principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our
Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos, it means just that - qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to
enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute
47
especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and
puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi
remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission[34] explains -
The patrimony of the Nation that should be conserved and developed refers not only to our rich natural resources but
also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and letters. Therefore, we
should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of
our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.[35] When the Constitution speaks
of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very
well used the term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an American
hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has
since then become the venue of various significant events which have shaped Philippine history. It was called the
Cultural Center of the 1930s. It was the site of the festivities during the inauguration of the Philippine Commonwealth.
Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and official visitors who are
accorded the traditional Philippine hospitality.[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City.[37] During
World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the
two (2) places for their final stand. Thereafter, in the 1950s and 1960s, the hotel became the center of political activities,
playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous
international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d etat where an aspirant for vice-president was proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations
of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and
patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on
which the hotel edifice stands. Consequently, we cannot sustain respondents claim that the Filipino First Policy provision
is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building
nor the land upon which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes corporations at
least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in
substituting the words QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is
a corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by
Filipino citizens?
48
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent
Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only to individuals and not to
juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word
Filipinos here, as intended by the proponents, will include not only individual Filipinos but also Filipino-controlled
entities or entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can
ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be
preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS. This embodies the so-called Filipino First policy. That means that Filipinos should be given
preference in the grant of concessions, privileges and rights covering the national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further
clarified by Commissioner Nolledo[43] -
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better known as the
FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those citizens who can make a viable
contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the
49
pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such
an indiscriminate preference would be counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made between a qualified
foreigner and a qualified Filipino, the latter shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole
inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry,
or it has significant equity ownership in another hotel company, or it has an overall management and marketing
proficiency to successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-
executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional
provision - by the government itself - is only too distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need
implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply
afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt -
The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress
acts - provided that there are discoverable legal standards for executive action. When the executive acts, it must be
guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading
and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would
have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates.[45]
Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by
itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale
of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee
on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a state action. In constitutional jurisprudence, the acts of persons distinct from the
government are considered state action covered by the Constitution (1) when the activity it engages in is a public
function; (2) when the government is so significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act
of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of state
action. Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of
the State and therefore subject to the constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the government as elements of
the State. After all, government is composed of three (3) divisions of power - legislative, executive and judicial.
Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3) branches of
government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the
Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding
rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the
highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly
written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the
50
Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental
law of the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share.[47] Certainly, the constitutional mandate itself is
reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a
higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there
is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches
the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the
Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated
in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a
perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution
and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors
must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the
Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since
petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly,
Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us,
while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally
made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or
gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so
than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules,
respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be
used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate
guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of
the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede
and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained
by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by
Chief Justice Narvasa -
51
As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or
the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been
spared criticism for decisions perceived as obstacles to economic progress and development x x x x in connection with a
temporary injunction issued by the Courts First Division against the sale of the Manila Hotel to a Malaysian Firm and its
partner, certain statements were published in a major daily to the effect that that injunction again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind
referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that
they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion
amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and
ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless
of the character of the asset, should not take precedence over non-material values. A commercial, nay even a
budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines
higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance
of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review
when the Constitution is involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with sovereignty
residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and
welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a
policy. It cannot override the demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely
for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are
talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as
a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of
their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila
Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a history of grandeur;
a most historical setting that has played a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark -
this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of the
Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nations soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally
drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-
Filipino? How much of national pride will vanish if the nations cultural heritage is entrusted to a foreign entity? On the
other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a
qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of
the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being
the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale,
to issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose.
SO ORDERED.
52
G.R. No. L-32432 September 11, 1970
MANUEL B. IMBONG, petitioner,

vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE
KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr., and Solicitors
Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for respondents.
Lorenzo Taada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.
MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No. 6132 by
petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and interested in running as
candidates for delegates to the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132, claiming
during the oral argument that it prejudices their rights as such candidates. After the Solicitor General had filed answers
in behalf the respondents, hearings were held at which the petitioners and the amici curiae, namely Senator Lorenzo
Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV of the
Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention to propose
constitutional amendments to be composed of two delegates from each representative district who shall have the same
qualifications as those of Congressmen, to be elected on the second Tuesday of November, 1970 in accordance with the
Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year, Congress, acting as a
legislative body, enacted Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and practically restating in
toto the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending the aforesaid
Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of 320 delegates apportioned
among the existing representative districts according to the number of their respective inhabitants: Provided, that a
representative district shall be entitled to at least two delegates, who shall have the same qualifications as those
required of members of the House of Representatives," 1 "and that any other details relating to the specific
apportionment of delegates, election of delegates to, and the holding of, the Constitutional Convention shall be
embodied in an implementing legislation: Provided, that it shall not be inconsistent with the provisions of this
Resolution." 2
On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing Resolutions
Nos. 2 and 4, and expressly repealing R.A. No.
4914. 3
53
Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions embodied in Sections
2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of Sec. 8(a) of said R.A.
No. 6132 practically on the same grounds advanced by petitioner Gonzales.
The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether elective or appointive,
including members of the Armed Forces of the Philippines, as well as officers and employees of corporations or
enterprises of the government, as resigned from the date of the filing of their certificates of candidacy, was recently
sustained by this Court, on the grounds, inter alia, that the same is merely an application of and in consonance with the
prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4
II
Without first considering the validity of its specific provisions, we sustain the constitutionality of the enactment of R.A.
No. 6132 by Congress acting as a legislative body in the exercise of its broad law-making authority, and not as a
Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has full and plenary
authority to propose Constitutional amendments or to call a convention for the purpose, by a three-fourths vote of each
House in joint session assembled but voting separately. Resolutions Nos. 2 and 4 calling for a constitutional convention
were passed by the required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of such plenary authority to call a constitutional convention
includes, by virtue of the doctrine of necessary implication, all other powers essential to the effective exercise of the
principal power granted, such as the power to fix the qualifications, number, apportionment, and compensation of the
delegates as well as appropriation of funds to meet the expenses for the election of delegates and for the operation of
the Constitutional Convention itself, as well as all other implementing details indispensable to a fruitful convention.
Resolutions Nos. 2 and 4 already embody the above-mentioned details, except the appropriation of funds.
3. While the authority to call a constitutional convention is vested by the present Constitution solely and
exclusively in Congress acting as a Constituent Assembly, the power to enact the implementing details, which are now
contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress acting as a
Constituent Assembly. Such implementing details are matters within the competence of Congress in the exercise of its
comprehensive legislative power, which power encompasses all matters not expressly or by necessary implication
withdrawn or removed by the Constitution from the ambit of legislative action. And as lone as such statutory details do
not clash with any specific provision of the constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such implementing details
after calling a constitutional convention, Congress, acting as a legislative body, can enact the necessary implementing
legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of Res No. 2 as amended by Res. No. 4.
5. The fact that a bill providing for such implementing details may be vetoed by the President is no argument
against conceding such power in Congress as a legislative body nor present any difficulty; for it is not irremediable as
Congress can override the Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance with proportional
representation and therefore violates the Constitution and the intent of the law itself, without pinpointing any specific
provision of the Constitution with which it collides.
54
Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly require such
apportionment of delegates to the convention on the basis of population in each congressional district. Congress, sitting
as a Constituent Assembly, may constitutionally allocate one delegate for, each congressional district or for each
province, for reasons of economy and to avoid having an unwieldy convention. If the framers of the present Constitution
wanted the apportionment of delegates to the convention to be based on the number of inhabitants in each
representative district, they would have done so in so many words as they did in relation to the apportionment of the
representative districts. 5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed therein;
for it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly expressed in Sec. 1 of
Res. No. 4, which provides that the 320 delegates should be apportioned among the existing representative districts
according to the number of their respective inhabitants, but fixing a minimum of at least two delegates for a
representative district. The presumption is that the factual predicate, the latest available official population census, for
such apportionment was presented to Congress, which, accordingly employed a formula for the necessary computation
to effect the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No. 6132, submitted
to this Tribunal by the amici curiae, show that it based its apportionment of the delegates on the 1970 official
preliminary population census taken by the Bureau of Census and Statistics from May 6 to June 30, 1976; and that
Congress adopted the formula to effect a reasonable apportionment of delegates. The Director of the Bureau of Census
and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count
of the population, we have computed the distribution of delegates to the Constitutional Convention based on Senate Bill
77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of distributing the delegates pursuant to
the provisions of the joint Resolution of both Houses No. 2, as amended. Upon your request at the session of the Senate-
House Conference Committee meeting last night, we are submitting herewith the results of the computation on the
basis of the above-stated method."
Even if such latest census were a preliminary census, the same could still be a valid basis for such apportionment. 6 The
fact that the lone and small congressional district of Batanes, may be over-represented, because it is allotted two
delegates by R.A. No. 6132 despite the fact that it has a population very much less than several other congressional
districts, each of which is also allotted only two delegates, and therefore under-represented, vis-a-vis Batanes alone,
does not vitiate the apportionment as not effecting proportional representation. Absolute proportional apportionment
is not required and is not possible when based on the number of inhabitants, for the population census cannot be
accurate nor complete, dependent as it is on the diligence of the census takers, aggravated by the constant movement
of population, as well as daily death and birth. It is enough that the basis employed is reasonable and the resulting
apportionment is substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a congressional
district.
While there may be other formulas for a reasonable apportionment considering the evidence submitted to Congress by
the Bureau of Census and Statistics, we are not prepared to rule that the computation formula adopted by, Congress for
proportional representation as, directed in Res. No. 4 is unreasonable and that the apportionment provided in R.A. No.
6132 does not constitute a substantially proportional representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as unconstitutional,
granted more representatives to a province with less population than the provinces with more inhabitants. Such is not
the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is equal to the
number of delegates accorded other provinces with more population. The present petitions therefore do not present
facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by the Constitution itself when it directs that the
apportionment of congressional districts among the various provinces shall be "as nearly as may be according to their
respective inhabitants, but each province shall have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis
supplied). The employment of the phrase "as nearly as may be according to their respective inhabitants" emphasizes the
fact that the human mind can only approximate a reasonable apportionment but cannot effect an absolutely
proportional representation with mathematical precision or exactitude.
55
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due process of law and
denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate from running "for any public office
in any election" or from assuming "any appointive office or position in any branch of the government government until
after the final adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our constitutional
system. The State through its Constitution or legislative body, can create an office and define the qualifications and
disqualifications therefor as well as impose inhibitions on a public officer. Consequently, only those with qualifications
and who do not fall under any constitutional or statutory inhibition can be validly elected or appointed to a public office.
The obvious reason for the questioned inhibition, is to immunize the delegates from the perverting influence of self-
interest, party interest or vested interest and to insure that he dedicates all his time to performing solely in the interest
of the nation his high and well nigh sacred function of formulating the supreme law of the land, which may endure for
generations and which cannot easily be changed like an ordinary statute. With the disqualification embodied in Sec. 5,
the delegate will not utilize his position as a bargaining leverage for concessions in the form of an elective or appointive
office as long as the convention has not finally adjourned. The appointing authority may, by his appointing power, entice
votes for his own proposals. Not love for self, but love for country must always motivate his actuations as delegate;
otherwise the several provisions of the new Constitution may only satisfy individual or special interests, subversive of
the welfare of the general citizenry. It should be stressed that the disqualification is not permanent but only temporary
only to continue until the final adjournment of the convention which may not extend beyond one year. The convention
that framed the present Constitution finished its task in approximately seven months from July 30, 1934 to February
8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision prohibiting a member of
Congress, during the time for which he was elected, from being appointed to any civil office which may have been
created or the emolument whereof shall have been increased while he was a member of the Congress. (Sec. 16, Art. VI,
Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding objective of the challenged disqualification, temporary
in nature, is to compel the elected delegates to serve in full their term as such and to devote all their time to the
convention, pursuant to their representation and commitment to the people; otherwise, his seat in the convention will
be vacant and his constituents will be deprived of a voice in the convention. The inhibition is likewise "designed to
prevent popular political figures from controlling elections or positions. Also it is a brake on the appointing power, to
curtail the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10, Answer in L-
32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right to public office
pursuant to state police power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise constitutional; for it is
based on a substantial distinction which makes for real differences, is germane to the purposes of the law, and applies to
all members of the same class. 7 The function of a delegate is more far-reaching and its effect more enduring than that
of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of the land which
delineates the essential nature of the government, its basic organization and powers, defines the liberties of the people,
and controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years.
No other public officer possesses such a power, not even the members of Congress unless they themselves, propose
constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The
classification, therefore, is neither whimsical nor repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the proposed
amendments are meaningful to the masses of our people and not designed for the enhancement of selfishness, greed,
corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention who will be elected on the second Tuesday of
November, 1970.
56
V
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional guarantees of
due process, equal protection of the laws, freedom of expressions, freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful assembly, free
expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the
pervasive and dormant police power of the State and may be lawfully abridged to serve appropriate and important
public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine whether a statute
which trenches upon the aforesaid Constitutional guarantees, is a legitimate exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of any political party or any other organization; and
2. any political party, political group, political committee, civic, religious, professional or other organizations or
organized group of whatever nature from
(a) intervening in the nomination of any such candidate or in the filing of his certificate, or
(b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for
election.
The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to
party or organization support or assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a) in its
provisos permits the candidate to utilize in his campaign the help of the members of his family within the fourth civil
degree of consanguinity or affinity, and a campaign staff composed of not more than one for every ten precincts in his
district. It allows the full exercise of his freedom of expression and his right to peaceful assembly, because he cannot be
denied any permit to hold a public meeting on the pretext that the provision of said section may or will be violated. The
right of a member of any political party or association to support him or oppose his opponent is preserved as long as
such member acts individually. The very party or organization to which he may belong or which may be in sympathy with
his cause or program of reforms, is guaranteed the right to disseminate information about, or to arouse public interest
in, or to advocate for constitutional reforms, programs, policies or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional rights
themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the aforesaid
constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity of the limitation on
the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates presents a question that is not too formidable in character.
According to the act: "It shall be unlawful for any political party, political committee, or political group to nominate
candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately preceding
an election, and for any other elective public office earlier than ninety days immediately preceding an election.
The right of association is affected. Political parties have less freedom as to the time during which they may nominate
candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate
57
activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do
so, but not for such a purpose. We sustain its validity. We do so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election campaign or
partisan political activity may be limited without offending the aforementioned constitutional guarantees as the same is
designed also to prevent a "clear and present danger of a substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or other group of
persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies
for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or
party; and (c) giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B,
pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this Court, which
could not "ignore ... the legislative declaration that its enactment was in response to a serious substantive evil affecting
the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed
or remedied. To assert otherwise would be to close one's eyes to the reality of the situation." 12;
Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed to muster the
required eight votes to declare as unconstitutional the limitation on the period for (a) making speeches, announcements
or commentaries or holding interviews for or against the election of any party or candidate for public office; (b)
publishing or distributing campaign literature or materials; and (e) directly or indirectly soliciting votes and/or
undertaking any campaign or propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e)
of R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists today and is one of the major compelling interests
that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban.
In the said Gonzales vs. Comelec case, this Court gave "due recognition to the legislative concern to cleanse, and if
possible, render spotless, the electoral process," 14 impressed as it was by the explanation made by the author of R.A.
No. 4880, Sen. Lorenzo Taada, who appeared as amicus curiae, "that such provisions were deemed by the legislative
body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to
the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as
violence that of late has marred election campaigns and partisan political activities in this country. He did invite our
attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless
clearly repugnant to fundamental rights, be ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by Senator
Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo Tolentino, the sponsor of the
Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal
protection of the laws by according them equality of chances. 16 The primary purpose of the prohibition then is also to
avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The
candidates must depend on their individual merits and not on the support of political parties or organizations. Senator
Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even chance as against
the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as it is on
empirical logic, finds support in our recent political history and experience. Both Senators stressed that the independent
candidate who wins in the election against a candidate of the major political parties, is a rare phenomenon in this
country and the victory of an independent candidate mainly rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting his opponent. This position is further strengthened by the
principle that the guarantee of social justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal
opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido
vs. Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not wrong per se it is equally true that Congress in the
exercise of its broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies of
the times. One such act is the party or organization support proscribed in Sec. 8(a),which ban is a valid limitation on the
freedom of association as well as expression, for the reasons aforestated.
58
Senator Tolentino emphasized that "equality of chances may be better attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a hopeful endeavor to find a
solution to the grave economic, social and political problems besetting the country. Instead of directly proposing the
amendments Congress has chosen to call a Constitutional Convention which shall have the task of fashioning a
document that shall embody the aspirations and ideals of the people. Because what is to be amended is the
fundamental law of the land, it is indispensable that the Constitutional Convention be composed of delegates truly
representative of the people's will. Public welfare demands that the delegates should speak for the entire nation, and
their voices be not those of a particular segment of the citizenry, or of a particular class or group of people, be they
religious, political, civic or professional in character. Senator Pelaez, Chairman of the Senate Committee on Codes and
Constitutional Amendments, eloquently stated that "the function of a constitution is not to represent anyone in interest
or set of interests, not to favor one group at the expense or disadvantage of the candidates but to encompass all the
interests that exist within our society and to blend them into one harmonious and balanced whole. For the
constitutional system means, not the predominance of interests, but the harmonious balancing thereof."
So that the purpose for calling the Constitutional Convention will not be deflated or frustrated, it is necessary that the
delegatee thereto be independent, beholden to no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in the election of delegates who, because they have been chosen
with the aid and resources of organizations, cannot be expected to be sufficiently representative of the people. Such
delegates could very well be the spokesmen of narrow political, religious or economic interest and not of the great
majority of the people. 20
We likewise concur with the Solicitor General that the equal protection of the laws is not unduly subverted in par. I of
Sec. 8(a); because it does not create any hostile discrimination against any party or group nor does it confer undue favor
or privilege on an individual as heretofore stated. The discrimination applies to all organizations, whether political
parties or social, civic, religious, or professional associations. The ban is germane to the objectives of the law, which are
to avert the debasement of the electoral process, and to attain real equality of chances among individual candidates and
thereby make real the guarantee of equal protection of the laws.
The political parties and the other organized groups have built-in advantages because of their machinery and other
facilities, which, the individual candidate who is without any organization support, does not have. The fact that the other
civic of religious organizations cannot have a campaign machinery as efficient as that of a political party, does not vary
the situation; because it still has that much built-in advantage as against the individual candidate without similar
support. Moreover, these civic religious and professional organization may band together to support common
candidates, who advocates the reforms that these organizations champion and believe are imperative. This is admitted
by petitioner Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition as Annex "D",
wherein the Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner
Gonzales and two others as their candidates for the convention, which organized support is nullified by the questioned
ban, Senator Ganzon stressed that "without the group moving and working in joint collective effort" they cannot
"exercise effective control and supervision over our
leaders the Women's League, the area commanders, etc."; but with their joining with the LP's they "could have
presented a solid front with very bright chances of capturing all seats."
The civic associations other than political parties cannot with reason insist that they should be exempted from the ban;
because then by such exemption they would be free to utilize the facilities of the campaign machineries which they are
denying to the political parties. Whenever all organization engages in a political activity, as in this campaign for election
of delegates to the Constitutional Convention, to that extent it partakes of the nature of a political organization. This,
despite the fact that the Constitution and by laws of such civic, religious, or professional associations usually prohibit the
59
association from engaging in partisan political activity or supporting any candidate for an elective office. Hence, they
must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join with others or join any existing organization.
A person may run independently on his own merits without need of catering to a political party or any other association
for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any political party or
organized group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to
assure equal chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that the
country can utilize their services if elected.
Impressed as We are by the eloquent and masterly exposition of Senator Taada for the invalidation of par. 1 of Sec.
8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of our civil liberties enshrined in
the Bill of Rights, We are not persuaded to entertain the belief that the challenged ban transcends the limits of
constitutional invasion of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a),
paragraph 1, thereof, cannot be declared unconstitutional. Without costs.
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,

vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR
DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA,
Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971 Constitutional
Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to hold a
plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting age" in Section
1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for ratification by the people
pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent implementing
resolutions, by declaring said resolutions to be without the force and effect of law in so far as they direct the holding of
such plebiscite and by also declaring the acts of the respondent Commission (COMELEC) performed and to be done by it
in obedience to the aforesaid Convention resolutions to be null and void, for being violative of the Constitution of the
Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that copies
thereof be served on the Solicitor General and the Constitutional Convention, through its President, for such action as
they may deem proper to take. In due time, respondent COMELEC filed its answer joining issues with petitioner. To
further put things in proper order, and considering that the fiscal officers of the Convention are indispensable parties in
a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law
60
for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention
be made respondents. After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and the last
two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and
considering that with the principal parties being duly represented by able counsel, their interests would be adequately
protected already, the Court had to limit the number of intervenors from the ranks of the delegates to the Convention
who, more or less, have legal interest in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus
G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor
Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to intervene jointly. The Court
feels that with such an array of brilliant and dedicated counsel, all interests involved should be duly and amply
represented and protected. At any rate, notwithstanding that their corresponding motions for leave to intervene or to
appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates and some private parties, the
latter in representation of their minor children allegedly to be affected by the result of this case with the records and the
Court acknowledges that they have not been without value as materials in the extensive study that has been undertaken
in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of two
resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened for the
purpose of calling a convention to propose amendments to the Constitution namely, Resolutions 2 and 4 of the joint
sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said Convention were
all elected under and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose amendments to the Constitution of the Philippines, to be
composed of two elective Delegates from each representative district who shall have the same qualifications as those
required of Members of the House of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when
approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed originally
in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on June 1,
1971. Its preliminary labors of election of officers, organization of committees and other preparatory works over, as its
first formal proposal to amend the Constitution, its session which began on September 27, 1971, or more accurately, at
about 3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER
THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
Section 1. Section One of Article V of the Constitution of the Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by law, who are
(twenty-one) EIGHTEEN years or over and are able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least six months preceding the election.
61
Section 2. This amendment shall be valid as part of the Constitution of the Philippines when approved by a majority of
the votes cast in a plebiscite to coincide with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age qualification for the exercise of suffrage shall be without
prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended Section or on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or from its unexpended
funds for the expense of the advanced plebiscite; provided, however that should there be no savings or unexpended
sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to help the
Convention implement (the above) resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the Constitutional Convention Act of
1971, may we call upon you to help the Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL

DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the plebiscite on
condition that:
(a) The Constitutional Convention will undertake the printing of separate official ballots, election returns and tally
sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures for the printing and shipment of said ballots
and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time so that they could be
distributed at the same time that the Commission will distribute its official and sample ballots to be used in the elections
on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors' Governors' statement of the genesis of the
above proposal:
The President of the Convention also issued an order forming an Ad Hoc Committee to implement the Resolution.
62
This Committee issued implementing guidelines which were approved by the President who then transmitted them to
the Commission on Elections.
The Committee on Plebiscite and Ratification filed a report on the progress of the implementation of the plebiscite in
the afternoon of October 7,1971, enclosing copies of the order, resolution and letters of transmittal above referred to
(Copy of the report is hereto attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention approved a resolution authored by Delegate
Antonio Olmedo of Davao Oriental, calling for a recess of the Convention from November 1, 1971 to November 9, 1971
to permit the delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution and the
transcript of debate thereon are hereto attached as Annexes 9 and 9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose Ozamiz confirming the
authority of the President of the Convention to implement Organic Resolution No. 1, including the creation of the Ad
Hoc Committee ratifying all acts performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as they provide
for the holding of a plebiscite co-incident with the elections of eight senators and all city, provincial and municipal
officials to be held on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending to carry out the
holding of the plebiscite directed by said resolutions are null and void, on the ground that the calling and holding of such
a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed amendment in
question cannot be presented to the people for ratification separately from each and all of the other amendments to be
drafted and proposed by the Convention. On the other hand, respondents and intervenors posit that the power to
provide for, fix the date and lay down the details of the plebiscite for the ratification of any amendment the Convention
may deem proper to propose is within the authority of the Convention as a necessary consequence and part of its power
to propose amendments and that this power includes that of submitting such amendments either individually or jointly
at such time and manner as the Convention may direct in discretion. The Court's delicate task now is to decide which of
these two poses is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the issue
before Us is a political question and that the Convention being legislative body of the highest order is sovereign, and as
such, its acts impugned by petitioner are beyond the control of the Congress and the courts. In this connection, it is to
be noted that none of the respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and
Auditor of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that the issue
herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of Gonzales v.
Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their opinions as to the other
matters therein involved, were precisely unanimous in upholding its jurisdiction. Obviously, distinguished counsel have
either failed to grasp the full impact of the portions of Our decision they have quoted or would misapply them by taking
them out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the constitutionality of
the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a constitutional convention
called for the purpose of proposing amendments to the Constitution, which concededly is at par with the former. A
simple reading of Our ruling in that very case of Gonzales relied upon by intervenors should dispel any lingering
misgivings as regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court speaking through one of the leading
members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel
63
declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted thereto as a political one
declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed
amendment to the Constitution which was being submitted to the people for ratification satisfied the three-
fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes
v. Chief Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v. Cuenco, (L-
10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that the
officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary
for quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on behalf of the party having the second largest number of votes
therein of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representatives
districts for the House of Representatives, upon the ground that the apportionment had not been made as may be
possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four
(4) cases that the issues therein raised were political questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of
legislative powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent powers of the
people as the repository sovereignty in a republican state, such as ours (Section 1, Art. 11, Constitution of the
Philippines) to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines)
Hence, when exercising the same, it is said that Senators and members of the House of Representatives act, not as
members of Congress, but as component elements of a constituent assembly. When acting as such, the members of
Congress derive their authority from the Constitution, unlike the people, when performing the same function, (Of
amending the Constitution) for their authority does not emanate from the Constitution they are the very source of all
powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive
their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not
their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution.
Such rigidity is stressed by the fact that the Constitution expressly confers upon the Supreme Court, (And, inferentially,
to lower courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution), despite the
eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the
Constitution is essentially justiciable not political, and, hence, subject to judicial review, and, to the extent that this view
may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere in
his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents and
intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other convention of
the same nature, owes its existence and derives all its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother
country or of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such
kind of conventions, it is absolutely true that the convention is completely without restrain and omnipotent all wise, and
it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted
by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution which provides:
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ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for
the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast
at an election at which the amendments are submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers generally beyond the
control of any department of the existing government, but the compass of such powers can be co-extensive only with
the purpose for which the convention was called and as it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its officers
and members are not immune from attack on constitutional grounds. The present Constitution is in full force and effect
in its entirety and in everyone of its parts the existence of the Convention notwithstanding, and operates even within
the walls of that assembly. While it is indubitable that in its internal operation and the performance of its task to
propose amendments to the Constitution it is not subject to any degree of restraint or control by any other authority
than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can rightfully deprive
any person of life, liberty or property without due process of law, deny to anyone in this country the equal protection of
the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for
that matter, can such Convention validly pass any resolution providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, impost or assessment, or declare war or call the Congress to a
special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy
between private individuals or between such individuals and the state, in violation of the distribution of powers in the
Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert, much less exercise, in
the light of the existing Constitution, the simple question arises, should an act of the Convention be assailed by a citizen
as being among those not granted to or inherent in it, according to the existing Constitution, who can decide whether
such a contention is correct or not? It is of the very essence of the rule of law that somehow somewhere the Power and
duty to resolve such a grave constitutional question must be lodged on some authority, or we would have to confess
that the integrated system of government established by our founding fathers contains a wide vacuum no intelligent
man could ignore, which is naturally unworthy of their learning, experience and craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice Concepcion
in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable logic and wealth of principle in the
opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it hard to say where the one leaves off and
the other begins. In times of social disquietude or political excitement, the great landmark of the Constitution are apt to
be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production our Constitution is of course lacking perfection and perfectibility, but as much as it was within
harmonious whole, under a system of check and balances and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon
channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment
and the principles of good government mere political apothegms. Certainly the limitations and restrictions embodied in
our Constitution are real as they should be in any living Constitution. In the United States where no express
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and half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of
Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to determine the nature, scope and extent of such
presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to strike conclusions
unrelated to actualities. Narrowed as its functions is in this manner the judiciary does not pass upon questions of
expressed through their representatives in the executive and legislative departments of the government.
But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional
liberty ... the people who are authors of this blessing must also be its guardians ... their eyes must be ever ready to mark,
their voices to pronounce ... aggression on the authority of their Constitution." In the last and ultimate analysis then,
must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts
than in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the
herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December
9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of
members of the National Assembly; notwithstanding the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of
the National Assembly, submitted after December 3, 1935 then the resolution of the Electoral Commission of December
9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has
the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December
9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns
and qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the
National Assembly on the one hand and the Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our own, upon the judicial department
is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely, to determine all contests relating to the election, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the
limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the
people and that it is not subject to constitutional restriction. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government, the framers of our Constitution
adopted the American type where the written constitution is interpreted and given effect by the judicial department. In
some countries which have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the absence of direct prohibition, courts are bound to assume
what is logically their function. For instance, the Constitution of Poland of 1921 expressly provides that courts shall have
no power to examine the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar
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declaration. In countries whose constitution are silent in this respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic
of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature
of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority
between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in
our constitutional system which may in the long run prove destructive of the entire framework? To ask these questions
is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle,
reason, and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has
jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of
determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of
all contests relating to the election, returns and qualifications of the members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just quoted do not
apply only to conflicts of authority between the three existing regular departments of the government but to all such
conflicts between and among these departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in Congress, the Comelec and the Constituent
assemblies constituted by the House of Congress, on the other. We see no reason of logic or principle whatsoever, and
none has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling should not
apply to the present Convention, even if it is an assembly of delegate elected directly by the people, since at best, as
already demonstrated, it has been convened by authority of and under the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It goes
without saying that We do this not because the Court is superior to the Convention or that the Convention is subject to
the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and the
rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn
duty of the Court, under the existing Constitution to resolve the issues in which petitioner, respondents and intervenors
have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the Constitutional
Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the proposed amendment
reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed
in the Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal statement of
the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is not against the
constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or
sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended by him to prevent that the
proposed amendment here involved be submitted to the people for ratification, his only purpose in filing the petition
being to comply with his sworn duty to prevent, Whenever he can, any violation of the Constitution of the Philippines
even if it is committed in the course of or in connection with the most laudable undertaking. Indeed, as the Court sees it,
the specific question raised in this case is limited solely and only to the point of whether or not it is within the power of
the Convention to call for a plebiscite for the ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well as in the subject
question implementing actions and resolution of the Convention and its officers, at this juncture of its proceedings,
when as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the
preliminary stages of considering other reforms or amendments affecting other parts of the existing Constitution; and,
indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein proposed "shall be without
prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution." In other words, nothing that the Court
may say or do, in this case should be understood as reflecting, in any degree or means the individual or collective stand
of the members of the Court on the fundamental issue of whether or not the eighteen-year-olds should be allowed to
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vote, simply because that issue is not before Us now. There should be no doubt in the mind of anyone that, once the
Court finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment may be
presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to the
absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of
adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line of
conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a
great measure, because of the pressure brought to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing about meaningful
changes in the structure and bases of the existing social and governmental institutions, including the provisions of the
fundamental law related to the well-being and economic security of the underprivileged classes of our people as well as
those concerning the preservation and protection of our natural resources and the national patrimony, as an alternative
to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at
times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the
Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and violence; what they
really want are law and order, peace and orderliness, even in the pursuit of what they strongly and urgently feel must be
done to change the present order of things in this Republic of ours. It would be tragic and contrary to the plain
compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other departments of the government or any other official or
entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by
interpreting and construing its provisions in appropriate cases with the proper parties, and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the point of
being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to
put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors
opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision, Article
XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is that only the
collective judgment of its members as to what is warranted by the present condition of things, as they see it, can limit
the extent of the constitutional innovations the Convention may propose, hence the complete substitution of the
existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave
divergence of views, the Court does not consider this case to be properly the one in which it should discharge its
constitutional duty in such premises. The issues raised by petitioner, even those among them in which respondents and
intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not necessarily impose
upon Us the imperative obligation to express Our views thereon. The Court considers it to be of the utmost importance
that the Convention should be untrammelled and unrestrained in the performance of its constitutionally as signed
mission in the manner and form it may conceive best, and so the Court may step in to clear up doubts as to the
boundaries set down by the Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a very familiar
principle of constitutional law that constitutional questions are to be resolved by the Supreme Court only when there is
no alternative but to do it, and this rule is founded precisely on the principle of respect that the Court must accord to
the acts of the other coordinate departments of the government, and certainly, the Constitutional Convention stands
almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by a call
of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already quoted earlier in this
opinion. We reiterate also that as to matters not related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all
the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should not be undertaken with the same
ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of
the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which
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we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty,
every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended
must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original
constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily
mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the
needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by
more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and
conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and
omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope and
extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on the
issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a plebiscite for
the ratification of the amendments to be proposed by the Convention is exclusively legislative and as such may be
exercised only by the Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to resolve that question,
grave and important as it may be. Truth to tell, the lack of unanimity or even of a consensus among the members of the
Court in respect to this issue creates the need for more study and deliberation, and as time is of the essence in this case,
for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will
refrain from making any pronouncement or expressing Our views on this question until a more appropriate case comes
to Us. After all, the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article XV of the
Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole amendment contained
in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all the amendments
to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. It being
indisputable that the amendment now proposed to be submitted to a plebiscite is only the first amendment the
Convention propose We hold that the plebiscite being called for the purpose of submitting the same for ratification of
the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the
Convention and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either
Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may propose. The
same provision also as definitely provides that "such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision
unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As
already stated, amending the Constitution is as serious and important an undertaking as constitution making itself.
Indeed, any amendment of the Constitution is as important as the whole of it if only because the Constitution has to be
an integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the
one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the other. lt is
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inconceivable how a constitution worthy of any country or people can have any part which is out of tune with its other
parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in its amendment becomes harder, for when a whole constitution
is submitted to them, more or less they can assumed its harmony as an integrated whole, and they can either accept or
reject it in its entirety. At the very least, they can examine it before casting their vote and determine for themselves
from a study of the whole document the merits and demerits of all or any of its parts and of the document as a whole.
And so also, when an amendment is submitted to them that is to form part of the existing constitution, in like fashion
they can study with deliberation the proposed amendment in relation to the whole existing constitution and or any of its
parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact that under Section 3 of
the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to what finally will be
concomitant qualifications that will be required by the final draft of the constitution to be formulated by the Convention
of a voter to be able to enjoy the right of suffrage, there are other considerations which make it impossible to vote
intelligently on the proposed amendment, although it may already be observed that under Section 3, if a voter would
favor the reduction of the voting age to eighteen under conditions he feels are needed under the circumstances, and he
does not see those conditions in the ballot nor is there any possible indication whether they will ever be or not, because
Congress has reserved those for future action, what kind of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the fundamental principles of the
constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing
whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention
may decide to provide for varying types of voters for each level of the political units it may divide the country into. The
root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial
changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the
present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of
the voting age upon the different institutions which the Convention may establish and of which presently he is not given
any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the
nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state of things, where the Convention has hardly started considering
the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any
single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present
Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark
as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a
possible frame of reference, for the simple reason that intervenors themselves are stating that the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of
Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much less does
the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to vote. But like the
Convention, the Court has its own duties to the people under the Constitution which is to decide in appropriate cases
with appropriate parties Whether or not the mandates of the fundamental law are being complied with. In the best light
God has given Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it has been called to formulate, the Convention's Organic Resolution
No. 1 and all subsequent acts of the Convention implementing the same violate the condition in Section 1, Article XV
that there should only be one "election" or plebiscite for the ratification of all the amendments the Convention may
propose. We are not denying any right of the people to vote on the proposed amendment; We are only holding that
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under Section 1, Article XV of the Constitution, the same should be submitted to them not separately from but together
with all the other amendments to be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the Constitutional
Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as they provide for the
holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent Comelec complying therewith
(RR Resolution No. 695) are hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief
Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking any action in compliance with
the said organic resolution. In view of the peculiar circumstances of this case, the Court declares this decision
immediately executory. No costs.
G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,

vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY
OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA
AND LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND
REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE
CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE
COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA
ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of
National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philippines;
TANCIO E. CASTAEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of
the Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the Philippines],
petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLE
BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
71
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for other
respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said
body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines.
Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant
to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on
September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On
November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day,
November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925, against the Commission
on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia,
that said Presidential Decree "has no force and effect as law because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by
the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in
Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the
contents thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections
(Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the
Director of Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against
the Commission on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoez, et al.
against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by
Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the
Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the Commission on
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Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the
Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and
by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the
Auditor General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on
Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers "not later than
12:00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on
Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the
parties, the aforementioned last case G.R. No. L-35979 was, also, heard, jointly with the others, on December 19,
1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short
period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different
dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution."
In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to
refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which
said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential
Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds
therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by
the President reportedly after consultation with, among others, the leaders of Congress and the Commission on
Elections the Court deemed it more imperative to defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than
January 15, 1973." It was alleged in said motion, inter alia:
"6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called
Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new dates given following
the postponement of the plebiscite from the original date of January 15 are February 19 and March 5);
[4] The opening of the regular session slated on January 22 in accordance with the existing Constitution despite
Martial Law." [Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the questions to be asked to the Citizens
Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?

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[3] Do you think that Congress should meet again in regular session?
[4] How soon would you like the plebiscite on the new Constitution to be held? [Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced to take place during the period from
January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be added to the four (4) question
previously announced, and that the forms of the question would be as follows:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of the government? [Bulletin Today, January 10, 1973;
emphasis an additional question.]
"11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so-called
Citizens Assemblies:
[1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national
interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new Constitution?
[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935
Constitution?
[5] If the elections would not be held, when do you want the next elections to be called?
[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied]
"12. That according to reports, the returns with respect to the six (6) additional questions quoted above will be on a
form similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and which reads:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so
until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.
QUESTION No. 3
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The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We
want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country.
If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new
Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which reads:
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced
that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of
martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January
8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to
be asked to the Citizens Assemblies, namely:
Do you approve of the New Constitution?
in relation to the question following it:
Do you still want a plebiscite to be called to ratify the new Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the
plebiscite on the proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two questions just
referred to will be reported then this Honorable Court and the entire nation will be confronted with a fait accompli
which has been attained in a highly unconstitutional and undemocratic manner;
"17. That the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution;
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"18. That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes,
become moot because, petitioners fear, and they therefore allege, that on the basis of such supposed expression of the
will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its
defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of confusion if not
chaos, because then, the people and their officials will not know which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and
announce its decision on the present petition;
"21. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution
which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of respondents to
petitioners' prayer at the plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-35949, "Gerardo
Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordoez, et al. v. The National Treasurer, et
al."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said
three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16,
1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 riled a
"supplemental motion for issuance of restraining order and inclusion of additional respondents," praying
"... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the
Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their
deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from
collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised
between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent
Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a
restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the
Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and
their deputies, subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the President
the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during
the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this
Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly insofar as such
proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution
because:
[a] The elections contemplated in the Constitution, Article XV, at which the proposed constitutional amendments
are to be submitted for ratification, are elections at which only qualified and duly registered voters are permitted to
vote, whereas, the so called Citizens' Assemblies were participated in by persons 15 years of age and older, regardless of
qualifications or lack thereof, as prescribed in the Election Code;
[b] Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the
Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action,
but votes in the Citizens' Assemblies were open and were cast by raising hands;
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[c] The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a
minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no
similar provisions to guide and regulate proceedings of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more than a handful of the so called Citizens'
Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or
so before the day they were supposed to begin functioning:
"Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders
since last Monday [January 8, 1973) to thresh out the mechanics in the formation of the Citizens Assemblies and the
topics for discussion." [Bulletin Today, January 10, 1973]
"It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year [Daily Express,
January 1, 1973], and considering the lack of experience of the local organizers of said assemblies, as well as the absence
of sufficient guidelines for organization, it is too much to believe that such assemblies could be organized at such a short
notice.
"5. That for lack of material time, the appropriate amended petition to include the additional officials and
government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because,
as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens'
Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials
and agencies may be properly included in the petition at bar because:
[a] The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73,
but also of "any similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by
the so-called Citizens' Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86. and the instructions incidental thereto clearly fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the
respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but
also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15,
1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully be reached by the processes of this Honorable Court by reason of this
petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of:
(a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district
officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement
of the provisions of this Code ..." [Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on Elections, together with the
officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or
enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-
called Citizens' Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the
cause of freedom an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been
announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand,
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and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating
confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the
proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-
called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the
Transitory Provisions of the proposed Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach and
jurisdiction of this Honorable Court."
On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G.R. No. L-
35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the
motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at
noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President,
he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in
G.R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present
that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No.
1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities
pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the citizenry to express their views on important national
issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5,
1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the
Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-
three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or
not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that
the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the
Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one
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(1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members
of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be
affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS

"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After admitting some of the allegations made in the
petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by
way affirmative defenses: 1) that the "questions raised" in said petition "are political in character"; 2) that "the
Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution
which would supersede the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of
funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite under
Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to
exercise judicial power" is "not relevant and ... without merit." Identical defenses were set up in the other cases under
consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court
have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have
deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the
result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth
in the opinions attached hereto, except that, instead of writing their separate opinions, some Members have preferred
to merely concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulated
the views of the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six
(6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo,
Makasiar and Antonio voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate
therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra
opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have
voted to uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to
continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo,
Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed
Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the opinion
that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution and the existence
of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio
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and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined, and that Martial
Law per se does not necessarily preclude the factual possibility of adequate freedom, for the purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that the
question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not
pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to
and should be determined by the Court, and that the "purported ratification of the Proposed Constitution ... based on
the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV
of the 1935 Constitution," but that such unfortunate drawback notwithstanding, "considering all other related relevant
circumstances, ... the new Constitution is legally recognizable and should be recognized as legitimately in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with
Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the Proposed Constitution
has been ratified by the people or not, "in the absence of any judicially discoverable and manageable standards," since
the issue "poses a question of fact.
7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando,
Teehankee, and the writer similarly voted, except as regards Case No. L-35948 as to which they voted to grant to the
petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in
said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and
decide on the merits everyone of the cases under consideration.
Accordingly, the Court acting in conformity with the position taken by six (6) of its members, 1 with three (3)
members dissenting, 2 with respect to G.R. No. L-35948, only and another member 3 dissenting, as regards all of the
cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the
Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from
implementing any of the provisions of the propose Constitution not found in the present Constitution" referring to
that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter"
and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about
January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged
that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet,
respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said
proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the
Philippines, is without authority to create the Citizens Assemblies"; that the same "are without power to approve the
proposed Constitution ..."; "that the President is without power to proclaim the ratification by the Filipino people of the
proposed Constitution"; and "that the election held to ratify the proposed Constitution was not a free election, hence
null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo,
Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, against the Executive Secretary, the Secretaries of
Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman of
the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections and the
Commissioner of Civil Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as President of the National
80
Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General,
the Budget Commissioner and the National Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo
Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National
Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra,
Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others as
"duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National
Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and
the President Pro Tempore of the Senate. In their petition as amended on January 26, 1973 petitioners Gerardo
Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned petitioners 8 would expire on
December 31, 1975, and that of the others 9 on December 31, 1977; that pursuant to our 1935 Constitution, "which is
still in force Congress of the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said
petitioner "along with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same
having been closed by the authorities in physical possession and control the Legislative Building"; that "(a)t about 5:00 to
6:00 P.M. the said day, the premises of the entire Legislative Building were ordered cleared by the same authorities, and
no one was allowed to enter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat and, in
his absence, respondent President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under
the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that the petitioners
ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are
preventing petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate
premise in the Congress of the Philippines Building ... are occupied by and are under the physical control of the elements
military organizations under the direction of said respondents"; that, as per "official reports, the Department of General
Services ... is now the civilian agency in custody of the premises of the Legislative Building"; that respondents "have
unlawfully excluded and prevented, and continue to so exclude and prevent" the petitioners "from the performance of
their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-
called Citizens' Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102
signed and issued by the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as
instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and
palpably unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully
refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance of their
duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because of
events supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the
Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein
had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional
and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents, representatives and subordinates ...have
excluded the petitioners from an office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose
Roy have unlawfully refrained from convening the Senate for its 8th session, assuming general jurisdiction over the
Session Hall and the premises of the Senate and ... continue such inaction up to this time and ... a writ of mandamus is
warranted in order to compel them to comply with the duties and functions specifically enjoined by law"; and that
"against the above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy and
adequate remedy in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of
preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well as all
their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to deliver
physical possession of the same to the President of the Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree, proclamation having the
same import and objective, issuing writs of prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ injunction permanent; and that a writ of mandamus be issued against the
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respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave
Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the
same ought to have been dismissed outright; controverting petitioners' allegations concerning the alleged lack
impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its alleged lack
of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to create
and establish Citizens' Assemblies "for the purpose submitting to them the matter of ratification of the new
Constitution," the alleged "improper or inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to act
on these petitions"; 2) the questions raised therein are "political in character and therefore nonjusticiable"; 3) "there
substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the people
in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the election, is conclusive upon
the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other
modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that "(t)he
subject matter" of said case "is a highly political question which, under the circumstances, this ...Court would not be in a
position to act upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision
in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may
only be an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition therein
not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By
resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos.
L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same
date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it
was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing,
which began on February 12, 1973, shortly after 9:30 a.m., was continued not only that afternoon, but, also, on February
13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to February 24, 1973, noon, within
which to submit their notes of oral arguments and additional arguments, as well as the documents required of them or
whose presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the
notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their
aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of time up to
March 3, 1973, within which to file his notes, which was granted, with the understanding that said notes shall include his
reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise,
moved and were granted an extension of time, to expire on March 10, 1973, within which to file, as they did, their notes
in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a
"Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a
"Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve a
copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast
thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his
aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes
cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
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This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also, by the
Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo had
expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by
the Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this
Court competent to act" in said cases "in the absence of any judicially discoverable and manageable standards" and
because "the access to relevant information is insufficient to assure the correct determination of the issue," apart from
the circumstance that "the new constitution has been promulgated and great interests have already arisen under it" and
that the political organ of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated
that "(w)ithout any competent evidence ... about the circumstances attending the holding" of the "referendum or
plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and that, accordingly, he assumed
"that what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and that he accepted "as a fait accompli that the
Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote or
improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required by
the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the hearing
of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should
be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar,
and that in deciding the same he would not necessarily adhere to said opinion if the petitioners herein succeeded in
convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight (8)
votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is
borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc, and
no treaty or law may be declared unconstitutional without the concurrence of two thirds of all the members of the
Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is required only to
declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief
Justice Moran, voicing the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight Justices to nullify a rule or
regulation or an executive order issued by the President. It is very significant that in the previous drafts of section 10,
Article VIII of the Constitution, "executive order" and "regulation" were included among those that required for their
nullification the vote of two-thirds of all the members of the Court. But "executive order" and "regulation" were later
deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was
made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the
government the Executive and the Legislative is present, which circumstance is absent in the case of rules,
regulations and executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of the
President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House
of Congress. 12 A treaty is entered into by the President with the concurrence of the Senate, 13 which is not required in
the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify the same, a
lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies with
equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is
governed by section 63 of the Revised Administrative Code, which provides:
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Administrative acts and commands of the (Governor-General) President of the Philippines touching the organization or
mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and commands governing the general performance of duties by public
employees or disposing of issues of general concern shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have) effect and any
information concerning matters of public moment determined by law, resolution, or executive orders, may be
promulgated in an executive proclamation, with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands of the President, executive proclamations are
mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain
in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so that, for
the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of
votes needed to invalidate an executive order, rule or regulation namely, six (6) votes would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional
Convention, in the determination of the question whether or not it is now in force, it is obvious that such question
depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the
1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the proposed
Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be settled by
applying the provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-justiciable
question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, he
alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which he
claims "this Court now derives its authority"; that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution
against interposition of the power of judicial review"; that "in the case of the New Constitution, the government has
been recognized in accordance with the New Constitution"; that "the country's foreign relations are now being
conducted in accordance with the new charter"; that "foreign governments have taken note of it"; that the "plebiscite
cases" are "not precedents for holding questions regarding proposal and ratification justiciable"; and that "to abstain
from judgment on the ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What
petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion reached by the Chief
Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding the same, as
the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV has not
been held; that the Chief Executive has no authority, under the 1935 Constitution, to dispense with said election or
plebiscite; that the proceedings before the Citizens' Assemblies did not constitute and may not be considered as such
plebiscite; that the facts of record abundantly show that the aforementioned Assemblies could not have been held
throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the proceedings in said
Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under which said Assemblies had been created and held, but, also,
because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, because the
provisions of our Election Code were not observed in said Assemblies, because the same were not held under the
supervision of the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because
the existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the
merits and demerits of said proposed Constitution, impaired the people's freedom in voting thereon, particularly a viva
84
voce, as it was done in many instances, as well as their ability to have a reasonable knowledge of the contents of the
document on which they were allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional
Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political
question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by
this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently
and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America,
whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being
patterned after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a
departure from said position, consistently with the form of government established under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of
the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it
partook of a political nature, and We unanimously declared that the issue was a justiciable one. With identical
unanimity, We overruled the respondents' contention in the 1971 habeas corpus cases, 19 questioning Our authority to
determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of
the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and
Montenegro v. Castaeda, 21 insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections,
22 the political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider
the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v.
Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-
question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and
found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned
habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added weight by its virtual
reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are justiciable, not political, is plain
and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of
separation of powers characteristic of the Presidential system of government the functions of which are classified
or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of laws, which are
allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial
decisions applying and/or interpreting the same, which belong to the executive department; and 3) those dealing with
the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable
and enforceable, which are apportioned to courts of justice. Within its own sphere but only within such sphere
each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon
the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or decisions made by the other departments provided
that such acts, measures or decisions are within the area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system goes hand in hand with the system of checks and
balances, under which each department is vested by the Fundamental Law with some powers to forestall, restrain or
arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing power of the
Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to special sessions and
even to prescribe or limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely,
Congress or an agency or arm thereof such as the commission on Appointments may approve or disapprove some
appointments made by the President. It, also, has the power of appropriation, to "define, prescribe, and apportion the
jurisdiction of the various courts," as well as that of impeachment. Upon the other hand, under the judicial power vested
by the Constitution, the "Supreme Court and ... such inferior courts as may be established by law," may settle or decide
with finality, not only justiciable controversies between private individuals or entities, but, also, disputes or conflicts
between a private individual or entity, on the one hand, and an officer or branch of the government, on the other, or
between two (2) officers or branches of service, when the latter officer or branch is charged with acting without
85
jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the
government is absolute or unqualified, the acts in the exercise of such power are said to be political in nature, and,
consequently, non-justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon
themselves a power conferred by the Constitution upon another branch of the service to the exclusion of the others.
Hence, in Taada v. Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final,
regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so
often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis.
497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16
C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass law or submit a proposed constitutional amendment to
the people. The courts have no judicial control over such matters, not merely because they involve political questions,
but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may
exercise the powers delegated him, free from judicial control, so long as he observes the laws act within the limits of the
power conferred. His discretionary acts cannot be controllable, not primarily because they are of a politics nature, but
because the Constitution and laws have placed the particular matter under his control. But every officer under
constitutional government must act accordingly to law and subject its restrictions, and every departure therefrom or
disregard thereof must subject him to that restraining and controlling power of the people, acting through the agency of
the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the
Legislature. One department is just as representative as the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the law places upon all official action. The recognition of this
principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of
laws and not of men" words which Webster said were the greatest contained in any written constitutional
document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the laymen,
We added that "... the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely,
a question of policy" in matters concerning the government of a State, as a body politic. "In other words, in the language
of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the government." It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the
prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the
crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations particularly those prescribed or imposed by the Constitution would be set at naught.
What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice
under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances,
one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation made particularly more exacting and peremptory by our oath, as
members of the highest Court of the land, to support and defend the Constitution to settle it. This explains why, in
Miller v. Johnson, 28 it was held that courts have a "duty, rather than a power", to determine whether another branch
of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and
stressed that, if the Constitution provides how it may be amended as it is in our 1935 Constitution "then, unless
the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." 29 In
fact, this very Court speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as
well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution
86
declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments" of the government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under consideration is non-
justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme
Court has any similarity with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against Borden and
others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in
the military service of said former colony of England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged in a conspiracy to overthrow the government
by force and the state had been placed by competent authority under Martial Law. Such authority was the charter
government of Rhode Island at the time of the Declaration of Independence, for unlike other states which adopted a
new Constitution upon secession from England Rhode Island retained its form of government under a British Charter,
making only such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent condition as an
independent state. It was under this form of government when Rhode Island joined other American states in the
Declaration of Independence and, by subsequently ratifying the Constitution of the United States, became a member of
the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by
them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed
by those who belonged to this segment of the population which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention was not
authorized by any law of the existing government. The delegates to such convention framed a new Constitution which
was submitted to the people. Upon the return of the votes cast by them, the convention declared that said Constitution
had been adopted and ratified by a majority of the people and became the paramount law and Constitution of Rhode
Island.
The charter government, which was supported by a large number of citizens of the state, contested, however, the
validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new
Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support him.
Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted measures to repel
the threatened attack and subdue the rebels. This was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in the support of the rebel government
which was never able to exercise any authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of
government. Eventually, a new constitution was drafted by a convention held under the authority of the charter
government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes were to
be given, the persons who were to receive and return them, and the qualifications of the voters having all been
previously authorized and provided for by law passed by the charter government," the latter formally surrendered all of
its powers to the new government, established under its authority, in May 1843, which had been in operation
uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of
armed men under his command at Chepatchet in the June following, which dispersed upon approach of the troops of
the old government, no further effort was made to establish" his government. "... until the Constitution of 1843"
adopted under the auspices of the charter government "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the
people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case
for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:
87
It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial of Thomas W.
Dorr took place after the constitution of 1843 went into operation. The judges who decided that case held their
authority under that constitution and it is admitted on all hands that it was adopted by the people of the State, and is
the lawful and established government. It is the decision, therefore, of a State court, whose judicial authority to decide
upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the
government under which it acted was framed and adopted under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode Island. The question relates, altogether, to
the constitution and laws of that State, and the well settled rule in this court is, that the courts of the United States
adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the
State.
Upon what ground could the Circuit Court of the United States which tried this case have departed from this rule, and
disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States
have certain powers under the Constitution and laws of the United States which do not belong to the State courts. But
the power of determining that a State government has been lawfully established, which the courts of the State disown
and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the
decisions of the State tribunals, and must therefore regard the charter government as the lawful and established
government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and fundamentally
different from that of the cases at bar. To begin with, the case did not involve a federal question, but one purely
municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of
Rhode Island upholding the constitution adopted under the authority of the charter government. Whatever else was
said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State
Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internal sovereignty
upon which the Federal Government may not encroach, whereas ours is a unitary form of government, under which our
local governments derive their authority from the national government. Again, unlike our 1935 Constitution, the charter
or organic law of Rhode Island contained no provision on the manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on recognition
of constitution, and there is a fundamental difference between these two (2) types of recognition, the first being
generally conceded to be a political question, whereas the nature of the latter depends upon a number of factors, one of
them being whether the new Constitution has been adopted in the manner prescribed in the Constitution in force at the
time of the purported ratification of the former, which is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments, antagonistic to each other, which is absent in the present cases.
Here, the Government established under the 1935 Constitution is the very same government whose Executive
Department has urged the adoption of the new or revised Constitution proposed by the 1971 Constitutional Convention
and now alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on matters other than
those referring to its power to review decisions of a state court concerning the constitution and government of that
state, not the Federal Constitution or Government, are manifestly neither, controlling, nor even persuasive in the
present cases, having as the Federal Supreme Court admitted no authority whatsoever to pass upon such matters or
to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of Minnessota had the
following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to
determine questions of a political character. It is interesting historically, but it has not the slightest application to the
case at bar. When carefully analyzed, it appears that it merely determines that the federal courts will accept as final and
controlling a decision of the highest court of a state upon a question of the construction of the Constitution of the state.
... . 33
Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the
General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection
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clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and
held that said issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in any measure
been committed by the Constitution to another branch of government, or whether the action of that branch exceeds
whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a decision
of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory
judgment declaring thereunder that he whose qualifications were uncontested had been unlawfully excluded from
the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but
the Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to the
lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly
adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that
the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the
Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created
to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally
amend the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or procedure
for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971
Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in
nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court's bounden duty to decide such
question.
The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as 'no law suit' "
because it allegedly involves a political question "a bona fide controversy as to whether some action denominated
"political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without authority to create the
Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified; that said
Assemblies "are without power to approve the proposed Constitution"; 3) that the President "is without power to
proclaim the ratification by the Filipino people of the proposed Constitution"; and 4) that "the election held (in the
Citizens' Assemblies) to ratify the proposed Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164 contend: 1)
that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed new Constitution or
"to appropriate funds for the holding of the said plebiscite"; 2) that the proposed new or revised Constitution "is vague
and incomplete," as well as "contains provisions which are beyond the powers of the 1971 Convention to enact,"
thereby rendering it "unfit for ... submission the people;" 3) that "(t)he period of time between November 1972 when
the 1972 draft was approved and January 11-15, 1973," when the Citizens' Assemblies supposedly ratified said draft,
"was too short, worse still, there was practically no time for the Citizens' Assemblies to discuss the merits of the
Constitution which the majority of them have not read a which they never knew would be submitted to them ratification
until they were asked the question "do you approve of the New Constitution?" during the said days of the voting";
and that "(t)here was altogether no freedom discussion and no opportunity to concentrate on the matter submitted to
them when the 1972 draft was supposedly submitted to the Citizens' Assemblies for ratification."
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Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a government-controlled
press, there can never be a fair and proper submission of the proposed Constitution to the people"; and 2) Proclamation
No. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases, the
petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of the
Constitution was a deception upon the people since the President announced the postponement of the January 15,
1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier in
this opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions taken in L-36165 by
counsel for therein respondents Gil J. Puyat and Jose Roy although more will be said later about them and by the
Solicitor General, on behalf of the other respondents in that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that
purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting
separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in said election.
Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority
of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution.
The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been
complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification
conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account,
namely, section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one
year and in the municipality wherein they propose to vote for at least six months preceding the election. The National
Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two
years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other
Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office
for a term of nine years and may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall
decide, save those involving the right to vote, all administrative questions, affecting elections, including the
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determination of the number and location of polling places, and the appointment of election inspectors and of other
election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring fee, orderly, and honest elections. The decisions, orders,
and rulings of the Commission shall be subject to review by the Supreme Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage.
They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law, who are twenty-one
years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months preceding the election," may exercise the right of
suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said provision merely guarantees
the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications,
prescribed by law, and that said right may be vested by competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he invokes
the permissive nature of the language "(s)uffrage may be exercised" used in section 1 of Art. V of the Constitution,
and the provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6 thereof, providing
that citizens of the Philippines "eighteen years of age or over," who are registered in the list of barrio assembly
members, shall be members thereof and may participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of suffrage,
so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the
records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the committee on suffrage of the Convention that drafted said
Constitution which report was, in turn, "strongly influenced by the election laws then in force in the Philippines ... ." 40 "
Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of the
Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to vote should be made
obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way of
compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof
imposing upon the National Assembly established by the original Constitution instead of the bicameral Congress
subsequently created by amendment said Constitution the duty to "extend the right of suffrage women, if in a
plebiscite to, be held for that purpose within two years after the adoption of this Constitution, not less than three
hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it was
rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in the first sentence of
said Art. V. Despite some debates on the age qualification amendment having been proposed to reduce the same to
18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of the right
of suffrage the second recommendation limiting the right of suffrage to those who could "read and write" was in
the language of Dr. Jose M. Aruego, one of the Delegates to said Convention "readily approved in the Convention
without any dissenting vote," although there was some debate on whether the Fundamental Law should specify the
language or dialect that the voter could read and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to be
and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein
mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed
with, except by constitutional amendment. Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch of the Government to deny said right to the
subject of the grant and, in this sense only, may the same partake of the nature of a guarantee. But, this does not
imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of
the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law
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was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and
incorporated into the Administrative Code of 1916 Act 2657 as chapter 20 thereof, and then in the Administrative
Code of 1917 Act 2711 as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3,
1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and disqualifications
from voting, are quoted below. 44 In all of these legislative acts, the provisions concerning the qualifications of voters
partook of the nature of a grant or recognition of the right of suffrage, and, hence, of a denial thereof to those who
lacked the requisite qualification and possessed any of the statutory disqualifications. In short, the history of section 1,
Art. V of the Constitution, shows beyond doubt than the same conferred not guaranteed the authority to persons
having the qualifications prescribed therein and none of disqualifications to be specified in ordinary laws and, necessary
implication, denied such right to those lacking any said qualifications, or having any of the aforementioned
disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscite
of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-
one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of this Court in
Tolentino v. Commission on Elections, 45 granting the writs, of prohibition and injunction therein applied for, upon the
ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct elections, and that the proposed amendment sought
to be submitted to a plebiscite was not even a complete amendment, but a "partial amendment" of said section 1,
which could be amended further, after its ratification, had the same taken place, so that the aforementioned partial
amendment was, for legal purposes, no more than a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio assembly
plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said
section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio assembly members" (which
include all barrio residents 18 years of age or over, duly registered in the list of barrio assembly members) is necessary
for the approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances,"
whereas, according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly registered barrio
assembly members qualified to vote" who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during the six months
immediately preceding election, duly registered in the list of voters" and " otherwise disqualified ..." just like the
provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution "may vote in the
plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the assembly, not
only because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a Constitution
particularly of a written and rigid one, like ours generally accorded a mandatory status unless the intention to the
contrary is manifest, which is not so as regards said Art. V for otherwise they would not have been considered
sufficiently important to be included in the Fundamental Law of the land. 48 Besides, it would be illogical, if not absurd,
believe that Republic Act No. 3590 requires, for the most important measures for which it demands in addition to
favorable action of the barrio council the approval of barrio assembly through a plebiscite, lesser qualifications than
those prescribed in dealing with ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to apply
only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or
revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the object thereof much more important if not fundamental, such as the
basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which
a intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation and,
accordingly, demands greater experience and maturity on the part of the electorate than that required for the election
of public officers, 49 whose average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed the
other qualifications laid down in both the Constitution and the present Election Code, 50 and of whether or not they are
92
disqualified under the provisions of said Constitution and Code, 51 or those of Republic Act No. 3590, 52 have
participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by
the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire
Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56
"members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against ...
743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite to be
called to ratify the new Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that the vote
of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is conceded that
the number of people who allegedly voted at the Citizens' Assemblies for exceeded the number of registered voters
under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and We have more to say on this point in
subsequent pages were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of
Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid
votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the
proceedings in the Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it is impossible to
ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal
or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven, although in a summary proceeding, such circumstances as
alleged by the affected or interested parties, stamp the election returns with the indelible mark of falsity and
irregularity, and, consequently, of unreliability, and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental
Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been
used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word "cast" means "deposit (a
ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the voter on the measure
proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices made on ballots not orally or by raising by
the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime,
we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared
and furnished by the Government and secrecy in the voting, with the advantage of keeping records that permit judicial
inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently
interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935 to 1967. Hence,
the viva voce voting in the Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
93
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its sections 1
and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ." The point to be
stressed here is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it have been depends
upon either Congress or the Judiciary? The answer must be the negative, because the functions of the Commission
"enforcement and administration" of election laws are neither legislative nor judicial in nature, and, hence, beyond
the field allocated to either Congress or courts of justice. Said functions are by their nature essentially executive, for
which reason, the Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an "independent" body.
In other words, in amending the original 1935 Constitution, by inserting therein said Art. X, on the Commission on
Elections, the purpose was to make said Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional organ,
election laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one
of the offices under the supervision and control of said Department. The same like other departments of the
Executive Branch of the Government was, in turn, under the control of the Chief Executive, before the adoption of the
1935 Constitution, and had been until the abolition of said Department, sometime ago under the control of the
President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions thereof, the Executive
could so use his power of control over the Department of the Interior and its Executive Bureau as to place the minority
party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the political
party in power, and, hence, to enable the same to perpetuate itself therein. To forestall this possibility, the original 1935
Constitution was amended by the establishment of the Commission on Elections as a constitutional body independent
primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its members nine
(9) years, except those first appointed 59 the longest under the Constitution, second only to that of the Auditor
General 60; by providing that they may not be removed from office except by impeachment, placing them, in this
respect, on the same plane as the President, the Vice-President, the Justices of the Supreme Court and the Auditor
General; that they may not be reappointed; that their salaries, "shall be neither increased nor diminished during their
term of office"; that the decisions the Commission "shall be subject to review by the Supreme Court" only 61; that "(n)o
pardon, parole, or suspension sentence for the violation of any election law may be granted without the favorable
recommendation of the Commission" 62; and, that its chairman and members "shall not, during the continuance in
office, engage in the practice of any profession or intervene, directly or indirectly, in the management or control of any
private enterprise which in anyway may affected by the functions of their office; nor shall they, directly or indirectly, be
financially interested in any contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the
framers of the amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure
the independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on Elections shall
have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart from
such other "functions which may be conferred upon it by law." It further provides that the Commission "shall decide,
save those involving the right to vote, all administrative question affecting elections, including the determination of the
number and location of polling places, and the appointment of election inspectors and of other election officials." And,
to forests possible conflicts or frictions between the Commission, on one hand, and the other offices or agencies of the
executive department, on the other, said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities
of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the
Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional
powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of
election precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of
the ballot; formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as
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for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of
municipal, provincial and files of registered voters; the composition and appointment of board of election inspectors;
the particulars of the official ballots to be used and the precautions to be taken to insure authenticity thereof; the
procedure for the casting of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots
and the preparation and disposition of election returns; the constitution and operation of municipal, provincials and
national boards of canvassers; the presentation of the political parties and/or their candidates in each election precinct;
the proclamation of the results, including, in the case of election of public officers, election contests; and the jurisdiction
of courts of justice in cases of violation of the provisions of said Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and
honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and
statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the election were held a viva voce, thus depriving
the electorate of the right to vote secretly one of the most, fundamental and critical features of our election laws
from time immemorial particularly at a time when the same was of utmost importance, owing to the existence of
Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the requirements of the law
pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and
that if they "could legally dispense with such requirement ... they could with equal propriety dispense with all of them,
including the one that the vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971
Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which which was
contested in the plebiscite cases, as well as in the 1972 habeas corpus cases 66 We need not, in the case of bar,
express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed Constitution
would be submitted to the people for ratification or rejection; directing the publication of said proposed Constitution;
and declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not inconsistent" with said
decree excepting those "regarding right and obligations of political parties and candidates" "shall apply to the
conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971 provides that "(a)ll elections of public officers
except barrio officials and plebiscites shall be conducted in the manner provided by this Code." General Order No. 20,
dated January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15, 1973," said
nothing about the procedure to be followed in plebiscite to take place at such notice, and no other order or decree has
been brought to Our attention, expressly or impliedly repealing the provisions of Presidential Decree 73, insofar as said
procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential Decree
No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily suspending effects of
Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution ... ." This specific mention of
the portions of the decrees or orders or instructions suspended by General Order No. 20 necessarily implies that all
other portions of said decrees, orders or instructions and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution
remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below 67 the Executive
declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall be considered in the
formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national issues ... like the holding of the plebiscite on the
new Constitution ... and others in the future, which shall serve as guide or basis for action or decision by the national
government"; and that the Citizens' Assemblies "shall conduct between January 10 and 15, 1973, a referendum on
important national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development immediately thereafter, ... ." As in Presidential Decree
No. 86, this Decree No. 86-A does not and cannot exclude the exercise of the constitutional supervisory power of the
Commission on Elections or its participation in the proceedings in said Assemblies, if the same had been intended to
constitute the "election" or Plebiscite required Art. V of the 1935 Constitution. The provision of Decree No. 86-A
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directing the immediate submission of the result thereof to the Department of Local Governments Community
Development is not necessarily inconsistent with, and must be subordinate to the constitutional power of the
Commission on Elections to exercise its "exclusive authority over the enforcement and administration of all laws to the
conduct of elections," if the proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for
the ratification or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973, ordering
"that important national issues shall from time to time; be referred to the Barangays (Citizens Assemblies) for resolution
in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum include the
matter of ratification of the Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the
Department of Local Governments and Community Development shall insure the implementation of this order." As in
the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily exclude exercise of the
powers vested by the 1935 Constitution in the Commission on Elections, even if the Executive had the authority to
repeal Art. X of our Fundamental Law which he does not possess. Copy of Presidential Decree No. 86-B is appended
hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the intervention of the Commission on
Elections, and without complying with the provisions of the Election Code of 1971 or even of those of Presidential
Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of the Executive
Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies
of the 1935 Constitution would be favored thereby, owing to the practical indefinite extension of their respective terms
of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII of the proposed Constitution,
without any elections therefor. And the procedure therein mostly followed is such that there is no reasonable means of
checking the accuracy of the returns files by the officers who conducted said plebiscites. This is another patent violation
of Art. of the Constitution which can hardly be sanctioned. And, since the provisions of this article form part of the
fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and honest"
expression of the people's will, the aforementioned violation thereof renders null and void the contested proceedings or
alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratified the revised Constitution
proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that the legal definition of an election, as
well as that which is usually and ordinarily understood by the term, is a choosing or as election by those having a right to
participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public measure
affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal.
145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A.
170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned

been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being
contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least,
entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved
or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been
"substancially" complied with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not
only because such question is political in nature, but, also, because should the Court invalidate the proclamation, the
former would, in effect, veto the action of the people in whom sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is predicated,
and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put it
... every officer under a constitutional government must act according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him to the restraining and controlling of the people, acting
through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through
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the executive or the Legislature. One department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations which the law places upon all official
action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority when he
certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all
the Barangays (Citizens Assemblies) throughout the Philippines and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said
proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power
to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of elections," and, hence,
whether the elections are for the choice or selection of public officers or for the ratification or rejection of any proposed
amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV
as "elections".
The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each
municipality a municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that the
president of each such municipal association formed part of a provincial or city association of presidents of such
municipal associations; that the president of each one of these provincial or city associations in turn formed part of a
National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation, reported to the President of the Philippines, in the
morning of January 17, 1973, the total result of the voting in the citizens' assemblies all over the country from January
10 to January 15, 1973. The Solicitor General further intimated that the said municipal associations had reported the
results of the citizens' assemblies in their respective municipalities to the corresponding Provincial Association, which, in
turn, transmitted the results of the voting in the to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens' assemblies throughout the Philippines and then
turned them over to Mr. Franciso Cruz, as President or acting President of the National Association or Federation,
whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he could
possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens'
assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such provincial or
city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of same
date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or
circular, if any, creating or directing or authorizing creation, establishment or organization" of said municipal, provincial
and national associations, but neither a copy of alleged report to the President, nor a copy of any "(p)roclamation,
decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of said report,
"(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and legal foundation. Hence,
the conclusion set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or
revised Constitution had been ratified by majority of the votes cast by the people, can not possibly have any legal effect
or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive and
those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact,
even a resolution of Congress declaring that a given person has been elected President or Vice-President of the
Philippines as provided in the Constitution, 69 is not conclusive upon the courts. It is no more than prima facie evidence
of what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as an election protest, if
and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance
therewith, who was duly elected to the office involved. 71 If prior to the creation of the Presidential Electoral Tribunal,
no such protest could be filed, it was not because the resolution of Congress declaring who had been elected President
or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such
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protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a
given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast
therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor such as the
cases at bar and the issue raised therein may and should be decided in accordance with the evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the state"
of Minnessota "all taxes were required to be raised under the system known as the 'general property tax.'
Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of
raising revenue induced the Legislature to submit to the people an amendment to the Constitution which provided
merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it was certified by the state canvassing board and proclaimed
by the Governor as having been legally adopted. Acting upon the assumption that the amendment had become a part of
the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and
the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found that the
amendment had no in fact been adopted, and on this appeal" the Supreme Court was "required to determine the
correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of the
proclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more than
tabulate the reports received from the various county board and add up and certify the results. State v. Mason, 45
Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and canvassing boards
are not conclusive and that the final decision must rest with the courts, unless the law declares that the decisions of the
board shall be final" and there is no such law in the cases at bar. "... The correctness of the conclusion of the state
board rests upon the correctness of the returns made by the county boards and it is inconceivable that it was intended
that this statement of result should be final and conclusive regardless of the actual facts. The proclamation of the
Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose
is to formally notify the people of the state of the result of the voting as found by the canvassing board. James on Const.
Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in order
that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections, "the
enforcement and administration of all laws relative to the conduct of elections," independently of the Executive, and
there is not even a certification by the Commission in support of the alleged results of the citizens' assemblies relied
upon in Proclamation No. 1102 apart from the fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President the
alleged result of the citizens' assemblies all over the Philippines it follows necessarily that, from a constitutional and
legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding topic,
the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the
provisions of the 1935 Constitution. In fact, it has not even been, ratified in accordance with said proposed Constitution,
the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the
fact that Art. VI of the proposed Constitution requires "secret" voting, which was not observed in many, if not most,
Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes
cast" in an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or the
effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing
not orally, as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitution has
not been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the
nature of a defense set up by the other respondents in these cases, the burden of proving such defense which, if true,
should be within their peculiar knowledge is clearly on such respondents. Accordingly, if despite the extensive notes
and documents submitted by the parties herein, the members of the Court do not know or are not prepared to say
98
whether or not the majority of the people or of those who took part in the Citizens' Assemblies have assented to the
proposed Constitution, the logical step would be to give due course to these cases, require the respondents to file their
answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of
disproving a defense set up by the respondents, who have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that
many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were held, plebiscites
for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite cases, We said,
inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.
In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to
refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which
said plebiscite would be held were known or announced officially. Then again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential
Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds
therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by
the President reportedly after consultation with, among others, the leaders of Congress and the Commission on
Elections the Court deemed it more imperative to defer its final action on these cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 four (4) days after
the last hearing of said cases 76 the President announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and the
leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed Constitution into
some local dialects and to comply with some pre-electoral requirements, as well as to afford the people a reasonable
opportunity to be posted on the contents and implications of said transcendental document. On January 7, 1973,
General Order No. 20 was issued formally, postponing said plebiscite "until further notice." How can said postponement
be reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from January 10 to
January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the Solicitor General, for the
ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended such assemblies to believe that the same were not
an "election" or plebiscite for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today, January 10,
1973; emphasis an additional question.]
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[6] Do you approve of the citizens assemblies as the base of popular government to decide issues of national
interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935
Constitution?
[10] If the elections would not be held, when do you want the next elections to be called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a proposed
Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 "Do you
approve the new Constitution?" One approves "of" the act of another which does not need such approval for the
effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The approval of the majority
of the votes cast in plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would have been
unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If the
majority of the answers to question No. 7 were in the affirmative, the proposed Constitution would have become
effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers to
question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative,
neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In
either case, not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In
short, the insertion of said two (2) questions apart from the other questions adverted to above indicates strongly
that the proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of
the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the
people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that
there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former
reported:
... This report includes a resumee (sic) of the activities we undertook in effecting the referendum on the eleven
questions you wanted our people consulted on and the Summary of Results thereof for each municipality and for the
whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original five questions. Consequently, when we received
an instruction on January 10 to change the questions, we urgently suspended all scheduled Citizens Assembly meetings
on that day and called all Mayors, Chiefs of Offices and other government officials to another conference to discuss with
them the new set of guidelines and materials to be used.
On January 11, ... another instruction from the top was received to include the original five questions among those to be
discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in
our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings throughout the
province. ... Aside from the coordinators we had from the Office of the Governor, the splendid cooperation and support
extended by almost all government officials and employees in the province, particularly of the Department of Education,
PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in the
instructions anytime and anywhere needed. ...
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... As to our people, in general, their enthusiastic participation showed their preference and readiness to accept this new
method of government to people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings ..." and
call all available officials "... to discuss with them the new set of guidelines and materials to be used ... ." Then, "on
January 11 ... another instruction from the top was received to include the original five questions among those be
discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in
our instructions to all those managing and supervising holding of the Citizens' Assembly meetings throughout province.
... As to our people, in general, their enthusiastic participation showed their preference and readiness to accept the new
method of government to people consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss not
put into operation means and ways to carry out the changing instructions from the top on how to organize the
citizens' assemblies, what to do therein and even what questions or topics to propound or touch in said assemblies; 2)
that the assemblies would involve no more than consultations or dialogues between people and government not
decisions be made by the people; and 3) that said consultations were aimed only at "shaping up government policies"
and, hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed
amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new way of life, as a nation, they wish to have, once the
proposed Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11, 1973, one can easily
imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the
Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their
immediate families and their household, although duly registered voters in the area of Greater Manila, were not even
notified that citizens' assemblies would be held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking judicial cognizance
of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the United States
stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the
law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved otherwise
than in the negative.
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under the
Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has
recognized said revised Constitution; that our foreign relations are being conducted under such new or revised
Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by their
acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under
the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are
politics in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited
to our Government, and even in devising administrative means and ways to better carry into effect. Acts of Congress
which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted
to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This,
notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or
Legislative Department. Whatever may be the functions allocated to the Executive Department specially under a
written, rigid Constitution with a republican system of Government like ours the role of that Department is
inherently, basically and fundamentally executive in nature to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution. 79
101
Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in line
with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the
proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even
normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in conformity
with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial Law.
Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had assumed all
powers of Government although some question his authority to do so and, consequently, there is hardly anything
he has done since the issuance of Proclamation No. 1102, on January 17, 1973 declaring that the Constitution
proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the people that
he could not do under the authority he claimed to have under Martial Law, since September 21, 1972, except the power
of supervision over inferior courts and its personnel, which said proposed Constitution would place under the Supreme
Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having preferred to maintain the status quo in connection
therewith pending final determination of these cases, in which the effectivity of the aforementioned Constitution is
disputed.
Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts.
Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate
officer or office of the Government complies with the commands of a superior officer or office, under whose supervision
and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and constitutional
viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise,
would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by respondents herein in support of the theory of the
people's acquiescence involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a
direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted upon as the only valid Constitution of the State" by
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution
ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in
legislating under it and putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for
their representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the
people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government, namely, the Governor; the Legislature not merely by
individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the people,
in the various ways specified above. What is more, there was no martial law. In the present cases, none of the foregoing
acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was announced
shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the amendment had been put into operation in
all branches of the Government, and complied with by the people who participated in the elections held pursuant to the
provisions of the new Constitution. In the cases under consideration, the legality of Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the
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scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the proposed
Constitution had been ratified despite General Order No. 20, issued on January 7, 1972, formally and officially
suspending the plebiscite until further notice was impugned as early as January 20, 1973, when L-36142 was filed, or
three (3) days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in the
new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the
Transitory Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its members have
performed said acts in session duly assembled, or unless the law provides otherwise, and there is no such law in the
Philippines. This is a well-established principle of Administrative Law and of the Law of Public Officers, and no plausible
reason has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become
necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in
the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions
under said Constitution, could have met in any other place, the building in which they perform their duties being
immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact
that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as
provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant
Guillermo de Vega a statement to the effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of that
date, 82 likewise, headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disclosed". Then, in
its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a
conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis ... which may
result in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may have been, the idea implied therein was too clear an
ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to
get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. Under
these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since January 22,
1973, was due to their recognition, acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial Law,
neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their compliance with
a number of Presidential orders, decrees and/or instructions some or many of which have admittedly had salutary
effects issued subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said
Proclamation No. 1102. In the words of the Chief Executive, "martial law connotes power of the gun, meant coercion by
the military, and compulsion and intimidation." 83 The failure to use the gun against those who comply with the orders
of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. It may
reflect the good, reasonable and wholesome attitude of the person who has the gun, either pointed at others, without
pulling the trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed it
necessary. Still, the intimidation is there, and inaction or obedience of the people, under these conditions, is not
necessarily an act of conformity or acquiescence. This is specially so when we consider that the masses are, by and large,
unfamiliar with the parliamentary system, the new form of government introduced in the proposed Constitution, with
the particularity that it is not even identical to that existing in England and other parts of the world, and that even
experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated
therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a
document certified to the President for his action under the Constitution by the Senate President and the Speaker
of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of
Representatives, concerning legislative measures approved by the two Houses of Congress. The argument of the
Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is
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conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102 merit less
consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned
officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters
and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations
and Mills sponsored by said Association, which even prepared the draft of said legislation, as well as lobbied actually for
its approval, for which reason the officers of the Association, particularly, its aforementioned president whose
honesty and integrity are unquestionable were present at the deliberations in Congress when the same approved the
proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has absolutely no official authority to perform in connection therewith,
and, hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Development
about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the Philippines and the
records do not show that any such certification, to the President of the Philippines or to the President Federation or
National Association of presidents of Provincial Associations of presidents of municipal association presidents of barrio
or ward assemblies of citizens would not, legally and constitutionally, be worth the paper on which it is written. Why?
Because said Department Secretary is not the officer designated by law to superintend plebiscites or elections held for
the ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate the results
thereof. Worse still, it is the department which, according to Article X of the Constitution, should not and must not be all
participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States that courts "will
not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed
Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in these five (5) cases. In
this connection, it should be noted that the Court has not decided whether or not to give due course to the petitions
herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment on the
respective petitions with three (3) members of the voting to dismiss them outright and then considers comments
thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and the main
defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same, according to
respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was demanded by
public interest. At the same time, respondents had cautioned against a judicial inquiry into the merits of the issues
posed on account of the magnitude of the evil consequences, it was claimed, which would result from a decision
thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and
academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the
rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the
aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits
thereof. On the other hand, three (3) members of the Court Justices Barredo, Antonio and Esguerra filed separate
opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has
pro tanto passed into history and has been legitimately supplanted by the Constitution in force by virtue of Proclamation
1102." 86 When the petitions at bar were filed, the same three (3) members of the Court, consequently, voted for the
dismissal of said petitions. The majority of the members of the Court did not share, however, either view, believing that
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the main question that arose before the rendition of said judgment had not been sufficiently discussed and argued as
the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and
discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days morning and
afternoon, or a total of exactly 26 hours and 31 minutes the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in
addition to rejoinders thereto, aside from a sizeable number of document in support of their respective contentions, or
as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and the
documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if
disregarding forms the petitions had been given due course and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express their views on the
aforementioned issues as if the same were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages hereof,
despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the
theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like the
aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164, L-36236
and L-36283, my vote is that the petitions therein should be given due course, there being more than prima facie
showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution,
either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said proposed
Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in
accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at
the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of
"judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability;
but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends
or consistent values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would have been very difficult, if not impossible, to
accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule of
Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and
essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as
appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes
cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agreed
to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was
further agreed of course that each member of the Court would expound in his individual opinion and/or concurrence his
own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with
such priority, qualifications and modifications as he may deem proper, as well as discuss thereon other related issues
which he may consider vital and relevant to the cases at bar.
105
The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable,
question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if
not strict, compliance) conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of the Court in their respect
opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102
presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question,
but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating that
"inasmuch as it is claimed there has been approval by the people, the Court may inquire into the question of whether or
not there has actually been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to
the people's will, but, in negative, the Court may determine from both factual and legal angles whether or not Article XV
of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court
hold that the issue is political and "beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only
one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by
qualified and duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified
pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said
Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and
canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing to
recognize as a judge that factually there was voting and that the majority of the votes were for considering as approved
the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am
constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have
cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be
said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with,
and, in effect, the 1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in
effect substantial compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no
majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already
accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there
has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation
106
of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated
in some American decisions to the effect that independently of the validity of the ratification, a new Constitution once
accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to
state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of
ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of
martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices
Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the
free expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of
judicial certainty, whether the people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of
their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by
these cases to resolve which considerations other than judicial, an therefore beyond the competence of this Court, 90
are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents'
motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by
virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on
the premise stated in their votes on the third question that they could not state with judicial certainty whether the
people have accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971
Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the
aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to
the new Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
107
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments. It has been judicially
determined whether a proposed amendment received the constitutional majority of votes (Dayton v. St. Paul, 22 Minn.
400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v.
Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A.
722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a single amendment, within the
constitutional requirement that every amendment must be separately submitted (State v. Powell, 77 Miss. 543, 27
South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W.
1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of submission upon the legislative journals
invalidates the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal.
479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19
Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form of the ballot are
sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy
Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett v. Ferguson,,
10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63
S.W. 849); whether the submission may be well by resolution as by a legislative act approved by the executive (Com. v.
Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410,
33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at
what election the amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the determination of the
question whether an amendment to the Constitution has been carried involves the exercise of political, and not judicial,
power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive
department is final, and that the action cannot be questioned by the judiciary; but, with reference to the conditions
precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by courts of the
highest respectability, that it is within the power of the judiciary to inquire into the question, even in a collateral
proceeding. ... It is to be noted that under section 1 of article 20 of the Constitution of the state no amendment can
become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as the
other. The amendment must first receive the requisite majority in the Legislature, and afterwards be adopted by the
requisite vote. ... It is the fact of a majority vote which makes the amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the particular case the court was called upon to determine
between rival governments, or whether the Legislature, or some board or official, had legally performed the duty
imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General
Assembly, under the power granted by the Constitution, could change the Constitution only in the manner prescribed by
it, and that it was the duty of the court to determine whether all prerequisites had been complied with. In Collier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the people in convention or in a mode
described by the Constitution itself, and that if the latter mode is adopted every requisite of the Constitution must be
observed. 'It has been said," says the court, "that certain acts are to be done, certain requisitions are to be observed,
before a change can be effected; but to what purpose are these acts required, or these requisitions enjoined, if the
Legislature or any other department of the government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires
the court to pronounce against every amendment which is shown not to have been made in accordance with the rules
prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an original Constitution, or abrogate an
old one and form a new one, at any time, without any political restriction, except the Constitution of the United States,
but if they undertake to add an amendment, by the authority of legislation to a Constitution already in existence, they
can do it only by the method pointed out by the Constitution to which the amendment is added. The power to amend a
Constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate
108
on any other subject contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no
amendments can be made to the Constitution of the state without a compliance with the provisions thereof, both in the
passage of such amendment by the Legislature and the manner of submitting it to the people. The courts have not all
agreed as to the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to the
Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that 'we
entertain no doubt that, to change the Constitution in an other mode than by a convention, every requisite which is
demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment,' the court
held that, 'as substance of right is grander and more potent than methods of form,' there had been substantial
compliance with the constitutional requirement that a proposed amendment to the Constitution must be entered at
length on the legislative journal. It appears that the joint resolution making submission simply provided that a
proposition should be submitted to the electors at the general election of 1880. It did not declare that the machinery of
the general election law should control, or that any particular officers or board would receive, count, or canvass the
votes cast. But the existing election machinery was adequate, and the votes were received, counted, and canvassed, and
the result declared as fully as though it had been in terms so ordered. These methods had been followed in the adoption
of previous amendments, and was held that, conceding the irregularity of the proceedings the Legislature and the
doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provision the past legislative
history of similar propositions, the universal prior acquiescence in the same forms of procedure and the popular and
unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision, and in
view of the duty cast upon the court taking judicial knowledge of anything affecting the existence and validity of any law
or portion of the Constitution, it must be adjudged that the proposed amendment became part of the Constitution. The
effect was to hold that a provision of the Constitution requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10
L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally
accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case said: 'The
reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but
contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is
illogical, and based on premises which are without any sound foundation, and rests merely on assumption.' See, also,
the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the
jurisdiction of the court to determine whether, in submitting a proposed amendment to the people, the Legislature
legally observed the constitutional provisions as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer, restrained the Secretary of State from taking
steps to submit to the people a proposed amendment to the Constitution agreed to by the Legislature on the ground
that the Legislature had not acted in conformity with the Constitution and that the proposed amendment was of such a
character that it could not properly become a part of the Constitution. The Supreme Court of Colorado, in People v.
Sours, supra, refused to exercise this authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The
amendment, which concededly had been adopted by the people, had not, before its submission, been entered in full
upon the legislative journals, as required by the Constitution, and it was held that this was a material variance in both
form and substance from the constitutional requirements, and that the amendment did not, therefore, become a part of
the Constitution. As to the claim that the question was political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the Constitution and the form of government under which they
themselves exist, and from which they derive their powers, yet, where the existing Constitution prescribes a method for
its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is
the duty of the courts in a proper case, when an amendment does not relate to their own power or functions, to inquire
whether, in the adoption of the amendment, the provisions of the existing Constitution have been observed, and, if not,
to declare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W.
1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution had been legally
adopted was treated as a judicial question. By the Constitution a proposed amendment was required to be approved by
Legislatures before its submission to the people. In this instance a bill was passed which contained 17 amendments. The
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next Legislature rejected 9 and adopted 8 of the amendments, and submitted them to the people. The majority of the
people voted for their adoption; but it was contended that the Constitution contemplated and required that the same
bill and the same amendments, without change, should approved by both Legislatures, and that it did not follow
because the second Legislature adopted separately 8 out of 17 amendments adopted by the first Legislature, it would
have adopted the 17, or any of them, if they had been voted upon the second in the form adopted by the first body. The
substance of the contention was that there had not been a concurrence of the two Legislatures on the same
amendments, according to the letter and spirit of the Constitution. The court held that the power of the Legislature in
submitting amendments could not be distinguished from the powers of convention, and that, as the people had spoken
and ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed amendment to
Constitution could not be submitted to the people at any other than a general election; but, as the amendment under
consideration had been submitted after the Constitution been changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the Constitution had been
legally submitted and adopted by the people was held to be judicial, and not political, in its nature. The amendment
under consideration changed the Constitution by providing for an elective, instead of an appointive, judiciary. It was
contented that the amendments had been improperly submitted and adopted by a majority of the qualified voters
voting at election, as required by the Constitution. The law did direct how the result of the election should be
determined. The Legislature by joint resolution recited that the election had been duly held throughout the state, and,
as it appeared from the returns made to the Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby is, inserted into the Constitution of the state
of Mississippi as a part of the Constitution.' In fact, the amendment was not submitted in the manner prescribed by the
Constitution, and it did not receive a majority of all the qualified voters voting at the election. It was argued that the
rules prescribed by the Constitution "are all for the guidance of the Legislature, and from the very nature of the thing
the Legislature must be the exclusive judge of all questions to be measured or determined by these rules. Whether the
question be political, and certainly a legislative one, or judicial, to be determined by the courts, this section of rules, not
only of procedure, but of final judgment as well, confides to the separate magistracy of the legislative department full
power to hear, consider, and adjudge that question. The Legislature puts the question to the qualified electors. The
qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that its question has been
answered in the affirmative, the amendment is inserted and made a part of the Constitution. The Governor and the
courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature, and when
the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held
that the question whether the proposition submitted to the voters constituted one, or more than one, amendment,
whether the submission was according to the requirements of the Constitution, and whether the proposition was in fact
adopted, were all judicial, and not political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not
imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a
most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of the judicial
department of the government to determine whether the legislative department or its officers had observed the
constitutional injunctions in attempting to amend the Constitution, and to annul their acts if they had not done so. The
case is an interesting and well-considered one. The Constitution provided the manner in which proposed amendments
should be submitted to the people, but did not provide a method for canvassing the votes. The Legislature having
agreed to certain proposed amendments, passed an act for submitting the same to the people. This statute provided for
the transmission to the Secretary of State of certificate showing the result of the voting throughout the state, and made
it the duty of the Governor at the designated time summon four or more Senators, who, with the Governor, should
constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. This board
was to determine and declare which of the proposed amendments had been adopted and to deliver a statement of the
results to the Secretary of State, and "any proposed amendment, which by said certificate and determination of the
board of canvassers shall appear to have received in its favor the majority of all the votes cast in the state for and
against said proposed amendment, shall from the time of filing such certificate be and become an amendment to and a
part of the Constitution of the state; and it shall be the duty of the Governor of the state forthwith, after such a
determination, to issue a proclamation declaring which of the said proposed amendments have been adopted by the
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people." This board was required to file a statement of the result of the election, and the Governor to issue his
proclamation declaring that the amendment had been adopted and become a part of the Constitution. At the instance
of a taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for review the statement of the
results of the election made by the canvassing board, in order that it might be judicially determined whether on the
facts shown in that statement the board had legally determined that the proposed amendment had been adopted. The
Supreme Court decided that the concurrence of the board of state canvassers and the executive department of the
government in their respective official functions placed the subject-matter beyond the cognizance of the judicial
department of the state. The Court of Appeals, after a full review of the authorities, reversed this decision, and held that
the questions were of a judicial nature, and properly determinable by the court on their merits. Mr. Justice Dixon, after
stating the facts, said: 'It thus becomes manifest that there was present in the Supreme Court, and is now pending in this
court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the
judicial department of the government has not the right to consider whether the legislative department and its agencies
have observed constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case that
they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in
this country.' The court, after considering the case on the merits, held that the proper conclusion had been drawn
therefrom, and that the amendment in question was legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question which we have under
consideration. In reference to the contention that the Constitution intended to delegate to the Speaker of the House of
Representatives the power to determine whether an amendment had been adopted, and that the question was political,
and not judicial, the court observed: "The argument has often been made in similar cases to the courts, and it is found in
many dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional requirement of publication
of a proposed constitutional provision for three months prior to the election at which it is to be submitted to the people
is mandatory and that noncompliance therewith renders the adoption of an amendment of no effect."
ANNEX B
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens
Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution proposed by the 1971
Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed
Constitution to the Citizens Assemblies or Barangays should taken as a plebiscite in itself in view of the fact that freedom
of debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary
to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 an that the
initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional
Convention.
111
The Secretary of the Department of Local Government and Community Development shall insure the implementation of
this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,

vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent
President of the Philippines to propose amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national
referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of
martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of
the period for tile exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031,
amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing
for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national
referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be
submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses
that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body
abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted
directly to the people in the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the following amendments to the
Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the
contemplation of Section 2 of Article XVI of the Constitution.
112
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim
Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent
President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less
than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the
members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the
number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be
determined by law. The number of representatives from each region or sector and the, manner of their election shall be
prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National
Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the
Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the
members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his
powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall
continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the
powers vested in the President and the Prime Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the
responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may
appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet
the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and
composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at
any time the government deems it necessary to ascertain the will of the people regarding any important matter whether
of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and
effect.
9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been
ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National
Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for
Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the
Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033,
insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs
113
the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October
16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise
the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite
on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor
General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond
judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to
exercise constituent power; the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted
by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose
amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim
National Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his
son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees
relative to the forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President
cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable
under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short period of time
for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via
referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the
right of suffrage to those citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad)
possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now
an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by one who
will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the
State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its
purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The
interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money
sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover,
as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case,
We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of
judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8 This
is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is
seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period,
and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the
prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has
not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the
114
incumbent President undertook the proposal of amendments and submitted the proposed amendments thru
Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity
of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a
contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have
the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a
justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution
provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and
decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional
without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only
of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the
Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities
to determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political.
What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to
the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to propose amendments is therefore a downright
justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If
the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare
whether the procedure followed or the authority assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the
President's authority to propose amendments and the regularity of the procedure adopted for submission of the
proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the
people themselves, by their sovereign act, provided for the authority and procedure for the amending process when
they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or
not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the
Supreme Court in whom the people themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's
majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the
Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one,
was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification
Cases 12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102. announcing the
Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the
question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No.
73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the respondent's
contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the
factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971,
despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered
to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not
apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in
Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor
General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support
thereof are, however, substantially the same as those given in support on the political question theory advanced in said
habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound
115
and constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of
the nature and effect of a stare decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a
vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of
two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the
question of calling such a convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or
revision.
In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred
with that amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote
of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and
period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote
of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be
submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In
times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon
special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that
prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority
opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the
determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing
conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional
Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they
were aware of the fact that under the same, the incumbent President was given the discretion as to when he could
convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the
proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to
defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite
of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the
convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays")
reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of
February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were
deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum
of January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a
Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending
process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the
116
Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating
body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional content of an organic character and that of a
legislative character'. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the
President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove
applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of
amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more
or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a
democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of
powers. In most free states it has generally been regarded as imperative that the total power of the government be
parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total
disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In
normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same
token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state
and its independent existence. There are moments in the life of any government when all powers must work together in
unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in
the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and
yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of
the cabinet and presidential systems of government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet
is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not
only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations.
21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting
aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The
rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of
constitutional restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear
authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over
its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives
under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister
under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim
Prime Minister, who shall then exercise their respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall
be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional
Convention, while giving to the President the discretion when to call the interim National Assembly to session, and
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knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with
no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery." 24
Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction
to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase
in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in
their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than
war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the
direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had
convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency
measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly
during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment
of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body
in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments
to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory
Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National
Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is
yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no
reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution,
which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has
converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the
interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of
absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose
amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to
propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to
undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of
the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore
normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of
the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are
mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975,
the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the
Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in
1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing
sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of
martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the
length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 .
28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of
19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of
the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16,
the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the
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people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution
and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National Referendum-Plebiscite on October 16.
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a
republican and unitary state, sovereignty "resides in the people and all government authority emanates from them .30
In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which,
according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is
because, as Holmes said, the Constitution "is an experiment, as all life is all experiment." 34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all
future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as
constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man.
Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only
by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the
authority to initiate the same and the procedure to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be
continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of
the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in
pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting
age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have
valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum
question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in
consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by
the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and
under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the
ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen
years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately
prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in
character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their
consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It is
participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or
ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at
119
least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally associated with the amending process of
the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to
dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is
impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-
plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had
announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters
soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government
employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for
their stand on the referendum-plebiscite issues. 44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or
discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people
have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975
carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without
counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the
women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34).
The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only
three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President,
and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official
Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the
economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette
for 20 days prior to the plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the
plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such
amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission
involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially
political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps
in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when
there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that
when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of
the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early
while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body
IN RESUME
The three issues are

120
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the environmental circumstances now obtaining,
does the President possess power to propose amendments to the Constitution as well as set up the required machinery
and prescribe the procedure for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a
sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee,
Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the
question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the
view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative.
Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183),
specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis,
thus raising serious doubts as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin
are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the
people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended.
Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond
the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of
Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold
that prescinding from the President's lack of authority to exercise the constituent power to propose the amendments,
etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs.
COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to
dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs
in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately
executory.
SO ORDERED
121
, petitioner, vs. Sandiganbayan, Major General Josephus Q. Ramas and Elizabeth Dimaano, respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the Sandiganbayan (First
Division)[1] dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037. The first Resolution dismissed
petitioners Amended Complaint and ordered the return of the confiscated items to respondent Elizabeth Dimaano,
while the second Resolution denied petitioners Motion for Reconsideration. Petitioner prays for the grant of the reliefs
sought in its Amended Complaint, or in the alternative, for the remand of this case to the Sandiganbayan (First Division)
for further proceedings allowing petitioner to complete the presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA Revolution, then President Corazon C. Aquino
issued Executive Order No. 1 (EO No. 1) creating the Presidential Commission on Good Government (PCGG). EO No. 1
primarily tasked the PCGG to recover all ill-gotten wealth of former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates. EO No. 1 vested the PCGG with the power (a) to conduct
investigation as may be necessary in order to accomplish and carry out the purposes of this order and the power (h) to
promulgate such rules and regulations as may be necessary to carry out the purpose of this order. Accordingly, the
PCGG, through its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to investigate
reports of unexplained wealth and corrupt practices by AFP personnel, whether in the active service or retired.[2]
Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of respondent Major
General Josephus Q. Ramas (Ramas). On 27 July 1987, the AFP Board issued a Resolution on its findings and
recommendation on the reported unexplained wealth of Ramas. The relevant part of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan St., La Vista, Quezon
City. He is also the owner of a house and lot located in Cebu City. The lot has an area of 3,327 square meters.
The value of the property located in Quezon City may be estimated modestly at P700,000.00.
The equipment/items and communication facilities which were found in the premises of Elizabeth Dimaano and were
confiscated by elements of the PC Command of Batangas were all covered by invoice receipt in the name of CAPT.
EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have been in the possession of Elizabeth Dimaano if
not given for her use by respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications equipment, the raiding team was also able to confiscate
money in the amount of P2,870,000.00 and $50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army, stationed at Camp
Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the mistress of respondent. That respondent usually goes
and stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he
arrives, Elizabeth Dimaano embraces and kisses respondent. That on February 25, 1986, a person who rode in a car went
to the residence of Elizabeth Dimaano with four (4) attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income and is supported
by respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items seized in her house on
March 3, 1986 without the consent of respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and $50,000 US Dollars for she had no
visible source of income.
122
This money was never declared in the Statement of Assets and Liabilities of respondent. There was an intention to cover
the existence of these money because these are all ill-gotten and unexplained wealth. Were it not for the affidavits of
the members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna, the existence and ownership of
these money would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by the Boards
consultant. Although the amount of P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed that
respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-gotten and unexplained
wealth in the amount of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA 3019,
as amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known as
The Act for the Forfeiture of Unlawfully Acquired Property.[3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 (RA No. 1379) [4] against
Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an Amended Complaint naming
the Republic of the Philippines (petitioner), represented by the PCGG, as plaintiff and Ramas as defendant. The
Amended Complaint also impleaded Elizabeth Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until 1986. On the
other hand, Dimaano was a confidential agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist at
the office of Ramas from 1 January 1978 to February 1979. The Amended Complaint further alleged that Ramas acquired
funds, assets and properties manifestly out of proportion to his salary as an army officer and his other income from
legitimately acquired property by taking undue advantage of his public office and/or using his power, authority and
influence as such officer of the Armed Forces of the Philippines and as a subordinate and close associate of the deposed
President Ferdinand Marcos.[5]
The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable ground to believe
that respondents have violated RA No. 1379.[6] The Amended Complaint prayed for, among others, the forfeiture of
respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to the Amended
Complaint. In his Answer, Ramas contended that his property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was not out of proportion to his salary and other legitimate income.
He denied ownership of any mansion in Cebu City and the cash, communications equipment and other items confiscated
from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-typist in the office of
Ramas from January-November 1978 only, Dimaano claimed ownership of the monies, communications equipment,
jewelry and land titles taken from her house by the Philippine Constabulary raiding team.
After termination of the pre-trial,[7] the court set the case for trial on the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation for trial and the
absence of witnesses and vital documents to support its case. The court reset the hearing to 17 and 18 April 1989.
123
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order to charge the delinquent
properties with being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x x.[8]
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioners presentation of evidence
on the ground that the motion for leave to amend complaint did not state when petitioner would file the amended
complaint. The Sandiganbayan further stated that the subject matter of the amended complaint was on its face vague
and not related to the existing complaint. The Sandiganbayan also held that due to the time that the case had been
pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the trial.
On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to proceed to trial
because of the absence of other witnesses or lack of further evidence to present. Instead, petitioner reiterated its
motion to amend the complaint to conform to the evidence already presented or to change the averments to show that
Dimaano alone unlawfully acquired the monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly because of its many
postponements. Moreover, petitioner would want the case to revert to its preliminary stage when in fact the case had
long been ready for trial. The Sandiganbayan ordered petitioner to prepare for presentation of its additional evidence, if
any.
During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence. Giving petitioner
one more chance to present further evidence or to amend the complaint to conform to its evidence, the Sandiganbayan
reset the trial to 18 May 1990. The Sandiganbayan, however, hinted that the re-setting was without prejudice to any
action that private respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had no further evidence
to present. Again, in the interest of justice, the Sandiganbayan granted petitioner 60 days within which to file an
appropriate pleading. The Sandiganbayan, however, warned petitioner that failure to act would constrain the court to
take drastic action.
Private respondents then filed their motions to dismiss based on Republic v. Migrino.[9] The Court held in Migrino that
the PCGG does not have jurisdiction to investigate and prosecute military officers by reason of mere position held
without a showing that they are subordinates of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without pronouncement as to costs. The
counterclaims are likewise dismissed for lack of merit, but the confiscated sum of money, communications equipment,
jewelry and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has primary jurisdiction over
the forfeiture cases under R.A. No. 1379, for such appropriate action as the evidence warrants. This case is also referred
to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth
Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition to which petitioner
filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
124
The Sandiganbayan dismissed the Amended Complaint on the following grounds:
(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz, Jr. v.
Sandiganbayan[10] and Republic v. Migrino[11] which involve the same issues.
(2.) No previous inquiry similar to preliminary investigations in criminal cases was conducted against Ramas and
Dimaano.
(3.) The evidence adduced against Ramas does not constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION OR RELATIONSHIP BY CONSANGUINITY
OR AFFINITY BY AND BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT
SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE
FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189
SCRA 289, NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino, supra, are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil Case No. 0037 was cured and/or waived by
respondents with the filing of their respective answers with counterclaim; and
3. The separate motions to dismiss were evidently improper considering that they were filed after commencement of
the presentation of the evidence of the petitioner and even before the latter was allowed to formally offer its evidence
and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES CONFISCATED FROM THE HOUSE OF RESPONDENT
DIMAANO WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS EVIDENCE.[12]
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v. Sandiganbayan[13] and Republic
v. Migrino.[14]
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause the filing of a
forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of AFP personnel, whether
in the active service or retired.[15] The PCGG tasked the AFP Board to make the necessary recommendations to
appropriate government agencies on the action to be taken based on its findings.[16] The PCGG gave this task to the AFP
125
Board pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct investigation as may be necessary in order
to accomplish and to carry out the purposes of this order. EO No. 1 gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover and
sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public office and/ or using their powers, authority, influence,
connections or relationship.
(b) The investigation of such cases of graft and corruption as the President may assign to the Commission from time to
time.
x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices of AFP personnel
who fall under either of the two categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have
accumulated ill-gotten wealth during the administration of former President Marcos by being the latters immediate
family, relative, subordinate or close associate, taking undue advantage of their public office or using their powers,
influence x x x;[17] or (2) AFP personnel involved in other cases of graft and corruption provided the President assigns
their cases to the PCGG.[18]
Petitioner, however, does not claim that the President assigned Ramas case to the PCGG. Therefore, Ramas case should
fall under the first category of AFP personnel before the PCGG could exercise its jurisdiction over him. Petitioner argues
that Ramas was undoubtedly a subordinate of former President Marcos because of his position as the Commanding
General of the Philippine Army. Petitioner claims that Ramas position enabled him to receive orders directly from his
commander-in-chief, undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the sense contemplated under EO No. 1 and
its amendments.
Mere position held by a military officer does not automatically make him a subordinate as this term is used in EO Nos. 1,
2, 14 and 14-A absent a showing that he enjoyed close association with former President Marcos. Migrino discussed this
issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is contemplated within the term
subordinate. The Whereas Clauses of EO No. 1 express the urgent need to recover the ill-gotten wealth amassed by
former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs.
Imelda Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees have any interest
or participation.
Applying the rule in statutory construction known as ejusdem generis that is-
[W]here general words follow an enumeration of persons or things by words of a particular and specific meaning, such
general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of
the same kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53,
58, citing Black on Interpretation of Laws, 2nd Ed., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close association with former President
Marcos and/or his wife, similar to the immediate family member, relative, and close associate in EO No. 1 and the close
relative, business associate, dummy, agent, or nominee in EO No. 2.
xxx
126
It does not suffice, as in this case, that the respondent is or was a government official or employee during the
administration of former President Marcos. There must be a prima facie showing that the respondent unlawfully
accumulated wealth by virtue of his close association or relation with former Pres. Marcos and/or his wife. (Emphasis
supplied)
Ramas position alone as Commanding General of the Philippine Army with the rank of Major General[19] does not
suffice to make him a subordinate of former President Marcos for purposes of EO No. 1 and its amendments. The PCGG
has to provide a prima facie showing that Ramas was a close associate of former President Marcos, in the same manner
that business associates, dummies, agents or nominees of former President Marcos were close to him. Such close
association is manifested either by Ramas complicity with former President Marcos in the accumulation of ill-gotten
wealth by the deposed President or by former President Marcos acquiescence in Ramas own accumulation of ill-gotten
wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner argues that unlike in
Migrino, the AFP Board Resolution in the instant case states that the AFP Board conducted the investigation pursuant to
EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is a presumption that the PCGG was
acting within its jurisdiction of investigating crony-related cases of graft and corruption and that Ramas was truly a
subordinate of the former President. However, the same AFP Board Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA 3019,
as amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known as
The Act for the Forfeiture of Unlawfully Acquired Property.[20]
Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2, 14 and 14-A, the
result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14-
A. This absence of relation to EO No. 1 and its amendments proves fatal to petitioners case. EO No. 1 created the PCGG
for a specific and limited purpose, and necessarily its powers must be construed to address such specific and limited
purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the properties Ramas
allegedly owned were accumulated by him in his capacity as a subordinate of his commander-in-chief. Petitioner merely
enumerated the properties Ramas allegedly owned and suggested that these properties were disproportionate to his
salary and other legitimate income without showing that Ramas amassed them because of his close association with
former President Marcos. Petitioner, in fact, admits that the AFP Board resolution does not contain a finding that Ramas
accumulated his wealth because of his close association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the Philippines did not
categorically find a prima facie evidence showing that respondent Ramas unlawfully accumulated wealth by virtue of his
close association or relation with former President Marcos and/or his wife, it is submitted that such omission was not
fatal. The resolution of the Anti-Graft Board should be read in the context of the law creating the same and the objective
of the investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019 and 1379 in relation to
Executive Order Nos. 1, 2, 14 and 14-a;[21] (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten wealth was
accumulated by a subordinate of former President Marcos that vests jurisdiction on PCGG. EO No. 1[22] clearly premises
the creation of the PCGG on the urgent need to recover all ill-gotten wealth amassed by former President Marcos, his
immediate family, relatives, subordinates and close associates. Therefore, to say that such omission was not fatal is
clearly contrary to the intent behind the creation of the PCGG.
127
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that fall under the jurisdiction of the PCGG pursuant to EO
Nos. 1, 2,[24] 14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3 of Executive Order
No. 14, shows what the authority of the respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth under Republic Act No. 1379,
accumulated by former President Marcos, his immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the take-over or sequestration of all business enterprises and entities
owned or controlled by them, during his administration, directly or through his nominees, by taking undue advantage of
their public office and/or using their powers, authority and influence, connections or relationships; and
(b) the investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the foregoing
categories, require a previous authority of the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the
Ombudsman and other duly authorized investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture petitions not falling
under EO No. 1 and its amendments. The preliminary investigation of unexplained wealth amassed on or before 25
February 1986 falls under the jurisdiction of the Ombudsman, while the authority to file the corresponding forfeiture
petition rests with the Solicitor General.[27] The Ombudsman Act or Republic Act No. 6770 (RA No. 6770) vests in the
Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings involving unexplained
wealth amassed after 25 February 1986.[28]
After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the absence of a prima facie
finding that Ramas was a subordinate of former President Marcos. The petition for forfeiture filed with the
Sandiganbayan should be dismissed for lack of authority by the PCGG to investigate respondents since there is no prima
facie showing that EO No. 1 and its amendments apply to respondents. The AFP Board Resolution and even the
Amended Complaint state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas case to the Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary
unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of private respondent
for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined from proceeding with the case, without
prejudice to any action that may be taken by the proper prosecutory agency. The rule of law mandates that an agency of
government be allowed to exercise only the powers granted to it.
Petitioners argument that private respondents have waived any defect in the filing of the forfeiture petition by
submitting their respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the first place. The
PCGG cannot exercise investigative or prosecutorial powers never granted to it. PCGGs powers are specific and limited.
Unless given additional assignment by the President, PCGGs sole task is only to recover the ill-gotten wealth of the
Marcoses, their relatives and cronies.[29] Without these elements, the PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to investigate and prosecute their cases by
filing their Motion to Dismiss as soon as they learned of the pronouncement of the Court in Migrino. This case was
decided on 30 August 1990, which explains why private respondents only filed their Motion to Dismiss on 8 October
1990. Nevertheless, we have held that the parties may raise lack of jurisdiction at any stage of the proceeding.[30] Thus,
we hold that there was no waiver of jurisdiction in this case. Jurisdiction is vested by law and not by the parties to an
action.[31]
128
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the preliminary
investigation. The Ombudsman may still conduct the proper preliminary investigation for violation of RA No. 1379, and if
warranted, the Solicitor General may file the forfeiture petition with the Sandiganbayan.[32] The right of the State to
forfeit unexplained wealth under RA No. 1379 is not subject to prescription, laches or estoppel.[33]
Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of the presentation of
petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has only itself to blame
for non-completion of the presentation of its evidence. First, this case has been pending for four years before the
Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11 August 1987, and only began to present its
evidence on 17 April 1989. Petitioner had almost two years to prepare its evidence. However, despite this sufficient
time, petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for postponements
and extensions. Even before the date set for the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion
for Leave to Amend the Complaint.[34] The motion sought to charge the delinquent properties (which comprise most of
petitioners evidence) with being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x
x x.
The Sandiganbayan, however, refused to defer the presentation of petitioners evidence since petitioner did not state
when it would file the amended complaint. On 18 April 1989, the Sandiganbayan set the continuation of the
presentation of evidence on 28-29 September and 9-11 October 1989, giving petitioner ample time to prepare its
evidence. Still, on 28 September 1989, petitioner manifested its inability to proceed with the presentation of its
evidence. The Sandiganbayan issued an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events because this case has been ready for
trial for over a year and much of the delay hereon has been due to the inability of the government to produce on
scheduled dates for pre-trial and for trial documents and witnesses, allegedly upon the failure of the military to supply
them for the preparation of the presentation of evidence thereon. Of equal interest is the fact that this Court has been
held to task in public about its alleged failure to move cases such as this one beyond the preliminary stage, when, in
view of the developments such as those of today, this Court is now faced with a situation where a case already in
progress will revert back to the preliminary stage, despite a five-month pause where appropriate action could have been
undertaken by the plaintiff Republic.[35]
On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation on the unexplained
wealth of private respondents as mandated by RA No. 1379.[36] The PCGG prayed for an additional four months to
conduct the preliminary investigation. The Sandiganbayan granted this request and scheduled the presentation of
evidence on 26-29 March 1990. However, on the scheduled date, petitioner failed to inform the court of the result of
the preliminary investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave petitioner until 18 May
1990 to continue with the presentation of its evidence and to inform the court of what lies ahead insofar as the status of
the case is concerned x x x.[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11 July 1990,
petitioner filed its Re-Amended Complaint.[38] The Sandiganbayan correctly observed that a case already pending for
years would revert to its preliminary stage if the court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for failure to complete the presentation of
its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish the presentation of its evidence. The
Sandiganbayan overlooked petitioners delays and yet petitioner ended the long-string of delays with the filing of a Re-
Amended Complaint, which would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to dismiss the case since
the PCGG has no jurisdiction to investigate and prosecute the case against private respondents. This alone would have
been sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against private respondents.
129
Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the presentation of
petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from Dimaanos house as illegally
seized and therefore inadmissible in evidence. This issue bears a significant effect on petitioners case since these
properties comprise most of petitioners evidence against private respondents. Petitioner will not have much evidence to
support its case against private respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search warrant captioned Illegal
Possession of Firearms and Ammunition. Dimaano was not present during the raid but Dimaanos cousins witnessed the
raid. The raiding team seized the items detailed in the seizure receipt together with other items not included in the
search warrant. The raiding team seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash consisting of P2,870,000 and US$50,000, jewelry,
and land titles.
Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure on March 3,
1986 or five days after the successful EDSA revolution.[39] Petitioner argues that a revolutionary government was
operative at that time by virtue of Proclamation No. 1 announcing that President Aquino and Vice President Laurel were
taking power in the name and by the will of the Filipino people.[40] Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private respondents exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only beginning 2 February
1987, the date of ratification of the 1987 Constitution. Petitioner contends that all rights under the Bill of Rights had
already reverted to its embryonic stage at the time of the search. Therefore, the government may confiscate the monies
and items taken from Dimaano and use the same in evidence against her since at the time of their seizure, private
respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquinos Proclamation No. 3
dated 25 March 1986, the EDSA Revolution was done in defiance of the provisions of the 1973 Constitution.[41] The
resulting government was indisputably a revolutionary government bound by no constitution or legal limitations except
treaty obligations that the revolutionary government, as the de jure government in the Philippines, assumed under
international law.
The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of the 1973
Constitution during the interregnum, that is, after the actual and effective take-over of power by the revolutionary
government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the
adoption of the Provisional Constitution); and (2) whether the protection accorded to individuals under the International
Covenant on Civil and Political Rights (Covenant) and the Universal Declaration of Human Rights (Declaration) remained
in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, we rule
that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the
interregnum.
During the interregnum, the directives and orders of the revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by
the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during the interregnum. As the Court explained in Letter of
Associate Justice Reynato S. Puno:[42]
130
A revolution has been defined as the complete overthrow of the established government in any country or state by
those who were previously subject to it or as a sudden, radical and fundamental change in the government or political
system, usually effected with violence or at least some acts of violence. In Kelsen's book, General Theory of Law and
State, it is defined as that which occurs whenever the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself.
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the people power
revolution that the Filipino people tore themselves away from an existing regime. This revolution also saw the
unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as an inherent right of a people to cast out
their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a
general uprising when the legal and constitutional methods of making such change have proved inadequate or are so
obstructed as to be unavailable. It has been said that the locus of positive law-making power lies with the people of the
state and from there is derived the right of the people to abolish, to reform and to alter any existing form of government
without regard to the existing constitution.
xxx
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact, it was
achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared
Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the organization of Mrs. Aquinos
Government which was met by little resistance and her control of the state evidenced by the appointment of the
Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the
Judiciary and the Military signaled the point where the legal system then in effect, had ceased to be obeyed by the
Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum would render
void all sequestration orders issued by the Philippine Commission on Good Government (PCGG) before the adoption of
the Freedom Constitution. The sequestration orders, which direct the freezing and even the take-over of private
property by mere executive issuance without judicial action, would violate the due process and search and seizure
clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a revolutionary government bound by no
constitution. No one could validly question the sequestration orders as violative of the Bill of Rights because there was
no Bill of Rights during the interregnum. However, upon the adoption of the Freedom Constitution, the sequestered
companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good Government,[43] petitioner Baseco,
while conceding there was no Bill of Rights during the interregnum, questioned the continued validity of the
sequestration orders upon adoption of the Freedom Constitution in view of the due process clause in its Bill of Rights.
The Court ruled that the Freedom Constitution, and later the 1987 Constitution, expressly recognized the validity of
sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety of
sequestration, freeze and takeover orders, it should be dispelled by the fact that these particular remedies and the
authority of the PCGG to issue them have received constitutional approbation and sanction. As already mentioned, the
Provisional or Freedom Constitution recognizes the power and duty of the President to enact measures to achieve the
mandate of the people to . . . (r)ecover ill-gotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of sequestration or freezing of assets or accounts. And as
also already adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies the authority to issue
sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986.
The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the sequestration orders
would clash with the Bill of Rights. Thus, the framers of both constitutions had to include specific language recognizing
131
the validity of the sequestration orders. The following discourse by Commissioner Joaquin G. Bernas during the
deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the arguments in defense of the present
amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio Araneta University Foundation, of which
all of us have been given a copy. On the one hand, he argues that everything the Commission is doing is traditionally
legal. This is repeated by Commissioner Romulo also. Minister Salonga spends a major portion of his lecture developing
that argument. On the other hand, almost as an afterthought, he says that in the end what matters are the results and
not the legal niceties, thus suggesting that the PCGG should be allowed to make some legal shortcuts, another word for
niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special protection? The answer is clear.
What they are doing will not stand the test of ordinary due process, hence they are asking for protection, for exceptions.
Grandes malos, grandes remedios, fine, as the saying stands, but let us not say grandes malos, grande y malos remedios.
That is not an allowable extrapolation. Hence, we should not give the exceptions asked for, and let me elaborate and
give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is to hasten constitutional
normalization. Very much at the heart of the constitutional normalization is the full effectivity of the Bill of Rights. We
cannot, in one breath, ask for constitutional normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be hypocritical; that would be a repetition of
Marcosian protestation of due process and rule of law. The New Society word for that is backsliding. It is tragic when we
begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report asks for
extraordinary exceptions from the Bill of Rights for six months after the convening of Congress, and Congress may even
extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report is asking for is
that we should allow the new government to acquire the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to think that they have a
vested right to its practice, and they will fight tooth and nail to keep the franchise. That would be an unhealthy way of
consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an argument that is very disturbing.
When it comes from a staunch Christian like Commissioner Salonga, a Minister, and repeated verbatim by another
staunch Christian like Commissioner Tingson, it becomes doubly disturbing and even discombobulating. The argument
makes the PCGG an auctioneer, placing the Bill of Rights on the auction block. If the price is right, the search and seizure
clause will be sold. Open your Swiss bank account to us and we will award you the search and seizure clause. You can
keep it in your private safe.
Alternatively, the argument looks on the present government as hostage to the hoarders of hidden wealth. The hoarders
will release the hidden health if the ransom price is paid and the ransom price is the Bill of Rights, specifically the due
process in the search and seizure clauses. So, there is something positively revolving about either argument. The Bill of
Rights is not for sale to the highest bidder nor can it be used to ransom captive dollars. This nation will survive and grow
strong, only if it would become convinced of the values enshrined in the Constitution of a price that is beyond monetary
estimation.
For these reasons, the honorable course for the Constitutional Commission is to delete all of Section 8 of the committee
report and allow the new Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG has two options. First,
it can pursue the Salonga and the Romulo argument that what the PCGG has been doing has been completely within the
pale of the law. If sustained, the PCGG can go on and should be able to go on, even without the support of Section 8. If
not sustained, however, the PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with what another Christian
replied when asked to toy around with the law. From his prison cell, Thomas More said, "I'll give the devil benefit of law
for my nations safety sake. I ask the Commission to give the devil benefit of law for our nations sake. And we should
delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration orders from the
Bill of Rights, the Constitutional Commission still adopted the amendment as Section 26,[44] Article XVIII of the 1987
132
Constitution. The framers of the Constitution were fully aware that absent Section 26, sequestration orders would not
stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a
constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all sequestration
orders void during the interregnum. Nevertheless, even during the interregnum the Filipino people continued to enjoy,
under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government, assumed responsibility for the States
good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires
each signatory State to respect and to ensure to all individuals within its territory and subject to its jurisdiction the
rights[45] recognized in the present Covenant. Under Article 17(1) of the Covenant, the revolutionary government had
the duty to insure that [n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that [n]o one shall be arbitrarily
deprived of his property. Although the signatories to the Declaration did not intend it as a legally binding document,
being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State.[46] Thus, the revolutionary government was also obligated under
international law to observe the rights[47] of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. Whether the
revolutionary government could have repudiated all its obligations under the Covenant or the Declaration is another
matter and is not the issue here. Suffice it to say that the Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of the rules of international law laid down in
the Covenant. The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the same
way it repudiated the 1973 Constitution. As the de jure government, the revolutionary government could not escape
responsibility for the States good faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and orders of the
revolutionary government became subject to a higher municipal law that, if contravened, rendered such directives and
orders void. The Provisional Constitution adopted verbatim the Bill of Rights of the 1973 Constitution.[48] The
Provisional Constitution served as a self-limitation by the revolutionary government to avoid abuses of the absolute
powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government
officers were valid so long as these officers did not exceed the authority granted them by the revolutionary government.
The directives and orders should not have also violated the Covenant or the Declaration. In this case, the revolutionary
government presumptively sanctioned the warrant since the revolutionary government did not repudiate it. The
warrant, issued by a judge upon proper application, specified the items to be searched and seized. The warrant is thus
valid with respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the warrant. As admitted by petitioners witnesses,
the raiding team confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES
Q. According to the search warrant, you are supposed to seize only for weapons. What else, aside from the weapons,
were seized from the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house of Elizabeth Dimaano. Do you know the
reason why your team also seized other properties not mentioned in said search warrant?
133
A. During the conversation right after the conduct of said raid, I was informed that the reason why they also brought the
other items not included in the search warrant was because the money and other jewelries were contained in attach
cases and cartons with markings Sony Trinitron, and I think three (3) vaults or steel safes. Believing that the attach cases
and the steel safes were containing firearms, they forced open these containers only to find out that they contained
money.
xxx
Q. You said you found money instead of weapons, do you know the reason why your team seized this money instead of
weapons?
A. I think the overall team leader and the other two officers assisting him decided to bring along also the money because
at that time it was already dark and they felt most secured if they will bring that because they might be suspected also
of taking money out of those items, your Honor.[49]
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with this case was applied before the Municipal Trial Court
of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite rifles M-16 and five
(5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you conduct surveillance in the house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?

A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any other properties or contraband which
could be found in the residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for instance, the communications equipment and
money. However, I did not include that in the application for search warrant considering that we have not established
concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe that only weapons were in the house of Miss
Elizabeth Dimaano?
A. Yes, your Honor.[50]
xxx
Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with the fiscals office who charged Elizabeth
Dimaano for Illegal Possession of Firearms and Ammunition?
A. Yes, sir.
134
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?

A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a Memorandum Receipt in the name of
Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant, like for instance, jewelries. Why did
you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring along also the jewelries and other
items, sir. I do not really know where it was taken but they brought along also these articles. I do not really know their
reason for bringing the same, but I just learned that these were taken because they might get lost if they will just leave
this behind.
xxx
Q. How about the money seized by your raiding team, they were not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was discovered to be contained in attach cases.
These attach cases were suspected to be containing pistols or other high powered firearms, but in the course of the
search the contents turned out to be money. So the team leader also decided to take this considering that they believed
that if they will just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by your raiding team, like Transfer Certificates
of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened.[51]
It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies, communications
equipment, jewelry and land titles that the raiding team confiscated. The search warrant did not particularly describe
these items and the raiding team confiscated them on its own authority. The raiding team had no legal basis to seize
these items without showing that these items could be the subject of warrantless search and seizure.[52] Clearly, the
raiding team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are contraband per se,[53] and they are not, they
must be returned to the person from whom the raiding seized them. However, we do not declare that such person is the
lawful owner of these items, merely that the search and seizure warrant could not be used as basis to seize and withhold
these items from the possessor. We thus hold that these items should be returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the Sandiganbayan dated 18
November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the records of this case to the Ombudsman for
such appropriate action as the evidence may warrant, and referring this case to the Commissioner of the Bureau of
Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.
SO ORDERED.
135
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC")
denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino
Group"), with other groups1 and individuals, commenced gathering signatures for an initiative petition to change the
1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that
will ratify their initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per
centum (12%) of all registered voters, with each legislative district represented by at least three per centum (3%) of its
registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the
6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative
Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-
Parliamentary form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC
should submit the following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the
proposed Article XVIII (Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of
an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in
Santiago v. Commission on Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the
COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The
Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties
to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to
show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for
"entertaining" the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the Binay
Group's petition as an opposition-in-intervention.
136
In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the
Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and
its implementing rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's
petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed grave abuse of discretion
in relying on Santiago. On the other hand, the opposing intervenors11 hold the contrary view and maintain that Santiago
is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition;
(2) the validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the
minimum requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII of the
1987 Constitution;12 (4) the nature of the proposed changes as revisions and not mere amendments as provided under
Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section
10(a) of RA 6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties'
memoranda, the Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on
amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in
essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's
initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's
ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the
People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to
propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by
the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the
draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
137
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who
prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not
they want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature.13 (Emphasis
supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be
"ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign
there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself
because the proponents must "prepare that proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire
proposal on its face is a petition by the people. This means two essential elements must be present. First, the people
must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an
initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first shown to the people who
express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed
amendments.
The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so
attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions
of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is
physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full
text of the proposed amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative from the United States where
various State constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the
unbending requirement is that the people must first see the full text of the proposed amendments before they sign to
signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, in
Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of
Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that
he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential
signer, without the signer having actually examined the petition, could easily mislead the signer by, for example,
omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking.
This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition,
who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot.17 (Boldfacing
and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x
x x (The purpose of the full text requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional
138
provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or
subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be
required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the
proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers
intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the
proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed,
Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid,
requires that the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their
private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the
advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their
proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters,
often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the
signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in
gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed
amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as
their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral
arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this
Court during the oral arguments was the signature sheet attached21 to the opposition in intervention filed on 7
September 2006 by intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's
Memorandum are the same. We reproduce below the signature sheet in full:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY
IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO ANOTHER?"
There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet.
Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul
Lambino admitted this during the oral arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of the
proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition"
that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of
the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the
Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition
which they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of their
amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated both.
139
However, Atty. Lambino changed his answer and stated that what his group circulated was the draft of the 30 August
2006 amended petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended petition
almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B. Aumentado's
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with
the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and
on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto
attached, and as representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the
"Official Website of the Union of Local Authorities of the Philippines"22 has posted the full text of Resolution No. 2006-
02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE
THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the
approach to support the proposals of the People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo
for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members
of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend
amendments to the 1987 Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution
as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel,
Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the
30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic)
of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode of
amending the 1987 Constitution." The proposals of the Consultative Commission24 are vastly different from the
proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with
the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution,
from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the
National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do
140
not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25
August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-
02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts
grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets.
ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more
specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated
and failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because the amended petition was what they
had shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged
that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the
COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the
Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft
petition together with the signature sheets. The signature sheets do not also contain any indication that the draft
petition is attached to, or circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they
circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure
attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of
the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the
signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have
understood the proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC"
appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu
Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed
changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the petition for initiative" but
failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments
that what they circulated was the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure
attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of
the act." The Lambino Group quotes an authority that cites a proposed change attached to the petition signed by the
people. Even the authority the Lambino Group quotes requires that the proposed change must be attached to the
petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to,
the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not
incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls
the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the
signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The
Lambino Group are less than candid with this Court in their belated claim that they printed and circulated, together with
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the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group circulated the
amended petition during the signature-gathering period, the Lambino Group admitted circulating only very limited
copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition
they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to
print additional copies of the draft petition but he could not state with certainty how many additional copies the other
supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because he himself
caused the printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that
"petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x."25 This
admission binds the Lambino Group and establishes beyond any doubt that the Lambino Group failed to show the full
text of the proposed changes to the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the
petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the
petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature
sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the
attached petition, the maximum number of people who saw the petition before they signed the signature sheets would
not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3
million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that
the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more
than one million signatories saw the petition before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the
face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner
Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also
obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of the
proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional
requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the
proposed changes before signing. They could not have known the nature and effect of the proposed changes, among
which are:
1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected
indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present
members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will
determine the expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further
amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people
who signed the signature sheets had no idea that they were proposing these amendments. These three proposed
changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a
reading or rereading of the contents of the signature sheets.
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During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the
signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the
proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local
elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the
local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the
word "next" before the phrase "election of all local government officials." This would have insured that the elections for
the regular Parliament would be held in the next local elections following the ratification of the proposed changes.
However, the absence of the word "next" allows the interim Parliament to schedule the elections for the regular
Parliament simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows
incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and
possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino
and his group deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the
proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to
rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full
text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that
the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the
local elections.
The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed
changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed
Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people
should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-
Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition
incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer
only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions,
one of which they may find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated
subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean
anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the
electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of
the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x
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The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state
what it will affect and effect and violates the requirement that proposed amendments embrace only one subject.
(Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska
warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted
to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase
the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the
enactment-by-initiative process. The drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex
or less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and eventual voters. Many voters will never
read the full text of the initiative before the election. More importantly, there is no process for amending or splitting the
several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative process.
(Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by
the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known
that their signatures would be used to propose an amendment mandating the interim Parliament to propose further
amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise
again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In
the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again
the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the
Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents
want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are
again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not
"directly proposed by the people" because the people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The
proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day
of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does
not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years
earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the
interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of
the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the
Prime Minister will come only from the present members of the House of Representatives to the exclusion of the
present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the
signature sheets could not have known that their signatures would be used to discriminate against the Senators. They
could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of
Prime Minister only to members of the existing House of Representatives.
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An initiative that gathers signatures from the people without first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution
requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must
sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's
fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a
general or special power of attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts
the wisdom of the people even if the members of this Court do not personally know the people who sign the petition.
However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown
to the people before they sign the petition, not after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the
requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people
through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision.
In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution.
Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x.
(Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress
upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is
through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this
Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this
Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last
night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory
that this matter of initiative, which came about because of the extraordinary developments this year, has to be
separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members
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felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the
revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. x x x x
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MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution.
That was the sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section
1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
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MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments."
Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the
words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between
"amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a
constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's
initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly
withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even
as they are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32 the
Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and
the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a
constitutional revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined
hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now
before us is so broad that if such measure became law a substantial revision of our present state Constitution would be
effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be
altered by those who favor amendments, revision, or other change only through the use of one of the specified means.
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The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from
an examination of the measure here in question that it is not an amendment as that term is generally understood and as
it is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution
drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted
to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses
required by Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a
thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the
initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the
Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the
constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the
instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded
that the people are sovereign and that they have power to adopt a constitution and to change their own work at will,
they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where
the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an
attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x
(Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and
duty to insure compliance with the clear command of the Constitution that a people's initiative may only amend,
never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the
Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the
scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest
cases that recognized the distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained
therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of the original instrument as
will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation
of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment
broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally
affects several provisions of the constitution, while amendment generally affects only the specific provision being
amended.
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In California where the initiative clause allows amendments but not revisions to the constitution just like in our
Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test
asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the
constitution by the deletion or alteration of numerous existing provisions."36 The court examines only the number of
provisions affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is
whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to
amount to a revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry.
Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the
fundamental powers of its Branches."38 A change in the nature of the basic governmental plan also includes changes
that "jeopardize the traditional form of government and the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature
and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution.40 Qualitatively, the
proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a
bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A
shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and
thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the
system of checks-and-balances within the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system,
involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a
revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent
that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention
of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine how and to what extent they should
be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision
because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a
unicameral system be because of its effect on other important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a
bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where
[the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of
Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature
affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch
of government, which has been in existence in the United States Congress and in all of the states of the nation, except
one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only radically change the whole pattern of government
in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to
carry on government.
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xxxx
We conclude with the observation that if such proposed amendment were adopted by the people at the General
Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the
numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the
people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would
obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit
Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in
bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable,
accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it
could be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative
not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by
the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105
provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr.44 There is
no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than
the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative body work full-time on the changes.
However, the same substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment"
and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide
only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual
experience of the people, that on one hand the common people in general are not expected to work full-time on the
matter of correcting the constitution because that is not their occupation, profession or vocation; while on the other
hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter
because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and
"amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting
the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or
extent of the correction. x x x x (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed
changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the
Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision
if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private
individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group
trivializes the serious matter of changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory.
Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate
from such categorical intent and language.45 Any theory espousing a construction contrary to such intent and language
deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of
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government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating
that a proposed change involving a radical structural change in government does not constitute a revision justly
deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to
advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His
theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be
enacted through the initiative process. They assert that the distinction between amendment and revision is determined
by reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of
the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the
government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure
"will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated
Article XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In
Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by
initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which
provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may
place such a measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed
by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the
plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red
for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision
begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without affecting any other section
or article, the change may generally be considered an amendment and not a revision. For example, a change reducing
the voting age from 18 years to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a
change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not
a revision.49
The changes in these examples do not entail any modification of sections or articles of the Constitution other than the
specific provision being amended. These changes do not also affect the structure of government or the system of
checks-and-balances among or within the three branches. These three examples are located at the far green end of the
spectrum, opposite the far red end where the revision sought by the present petition is located.
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However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of
one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word
"republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire
structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have
to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of
government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with
recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions,
but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative
bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to
undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and
24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2,
ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they
shall be amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law
prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the
Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable
inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of
government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which
requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral
arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the
rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency.
However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a
provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a
provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency
shall be resolved in favor of a "unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the
Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral
parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of
government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all
bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi,
Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for
amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires
harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's
initiative will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the
present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the
scope of a people's initiative to "[A]mendments to this Constitution."
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3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the
Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this
Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to
cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the
outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735
does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the
Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be
resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will
not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the
Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the
Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the
Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the
1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories."
Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed
with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino
Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the
basic requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more
than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions,
mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter
totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject
matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling in
Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's
ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants
outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public
respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the
dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June
10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of
this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly
specified modes of amendment and revision laid down in the Constitution itself.
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To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and
turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution
outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its
own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well
for the rule of law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast53 approved our
Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the
full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the
Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our
Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified
the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will
and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the
Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the
real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes
of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's
fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative
changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock
of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states
in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its
unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The
Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent
President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or
"sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies
the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow
this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's
raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
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MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON
ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the
Peoples Initiative for Reforms, Modernization and Action (PIRMA), respondents, SENATOR RAUL S. ROCO,
DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY
AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.
DECISION
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the
right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2
of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution.
The 1986 Constitutional Commission itself, through the original proponent[1] and the main sponsor[2] of the proposed
Article on Amendments or Revision of the Constitution, characterized this system as innovative.[3] Indeed it is, for both
under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution
were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional
convention.[4] For this and the other reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections
(hereafter, COMELEC) a Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative
(hereafter, Delfin Petition)[5] wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for Initiative on the 1987 Constitution, in
newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in
establishing signing stations at the time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for Peoples Initiative,[6] a group of citizens
desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement
and other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under
Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the
control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election registrars, who shall verify the signatures
affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary
that the time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and
that to adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as
well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI,[7] Section
4 of Article VII,[8] and Section 8 of Article X[9] of the Constitution. Attached to the petition is a copy of a Petition for
Initiative on the 1987 Constitution[10] embodying the proposed amendments which consist in the deletion from the
aforecited sections of the provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least
twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC.
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Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC,
through its Chairman, issued an Order[11] (a) directing Delfin to cause the publication of the petition, together with the
attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment,
and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own
expense not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the Peoples Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator
Raul S. Roco, together with his two other lawyers; and representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng
Demokratikong Pilipino (LABAN).[12] Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on
the ground that it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their memoranda and/or
oppositions/memoranda within five days.[13]
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel
Ongpin -- filed this special civil action for prohibition raising the following arguments:
(1) The constitutional provision on peoples initiative to amend the Constitution can only be implemented by law to be
passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago filed on 24 November
1995, is still pending before the Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on
statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the
other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate omission
indicates that the matter of peoples initiative to amend the Constitution was left to some future law. Former Senator
Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in 1994: There is
not a single word in that law which can be considered as implementing [the provision on constitutional initiative]. Such
implementing provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the
Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and not
after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the conduct of initiative on the Constitution
and initiative and referendum on national and local laws, is ultra vires insofar as initiative on amendments to the
Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right
of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law.
(5)The peoples initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of
term limits constitutes a revision and is, therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the COMELEC nor any other
government department, agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the
COMELEC grants the Delfin Petition, the peoples initiative spearheaded by PIRMA would entail expenses to the national
treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions of
additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental
importance to the public and the nation of the issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayers and
legislators suit.[14] Besides, there is no other plain, speedy, and adequate remedy in the ordinary course of law.
155
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible
period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until
further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents
Alberto and Carmen Pedrosa from conducting a signature drive for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment[15] on the petition. They argue
therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF THE COMELEC GRANTS
THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION
OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT
DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC.
THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING
TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS
DUTY BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290
IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH
NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE
COMELEC THE POWER TO PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A REVISION OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-
EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED. (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment[16] which starts off with an
assertion that the instant petition is a knee-jerk reaction to a draft Petition for Initiative on the 1987 Constitution ...
which is not formally filed yet. What he filed on 6 December 1996 was an Initiatory Pleading or Initiatory Petition, which
was legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather
signatures under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as
follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to
amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution
approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite.
156
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the
Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers
the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to
alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not
seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners estimate of P180 million as
unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous
with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority government expense
because it will be for the exercise of the sovereign power of the people.
In the Comment[17] for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General
contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the Constitution. Its Section 2 on Statement of Policy
explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of
initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the
Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in
scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for
initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on
the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election
Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through
Atty. Quadra, as well as the latters Manifestation stating that he is the counsel for private respondents Alberto and
Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed
on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20 January
1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their
Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words
of Fr. Joaquin Bernas, S.J.,[18] it would involve a change from a political philosophy that rejects unlimited tenure to one
that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect other
provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to
opportunities for public service and prohibiting political dynasties.[19] A revision cannot be done by initiative which, by
express provision of Section 2 of Article XVII of the Constitution, is limited to amendments.
157
(2) The prohibition against reelection of the President and the limits provided for all other national and local elective
officials are based on the philosophy of governance, to open up the political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to break the concentration of political and economic powers in the hands
of a few, and to promote effective proper empowerment for participation in policy and decision-making for the common
good; hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is
intended as a fallback position that may be availed of by the people only if they are dissatisfied with the performance of
their elective officials, but not as a premium for good performance.[20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the peoples initiative
on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate
agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the
ways and means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper
parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a
plebiscite, and (g) the appropriation of funds for such peoples initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the
COMELEC is without authority to legislate the procedure for a peoples initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis
for the Resolution, as the former does not set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention.[21] He avers that R.A. No. 6735 is the enabling
law that implements the peoples right to initiate constitutional amendments. This law is a consolidation of Senate Bill
No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He
likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution
No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the
Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under
the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC
in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of
registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and
resources of the COMELEC to assist them is securing the required number of signatures, as the COMELECs role in an
initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and
supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the
following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the
Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a
constitutional convention.[22]
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI
and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the
respondents to file within a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in
158
Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible period of three days from
notice, and the respondents to comment thereon within a nonextendible period of five days from receipt of the said
Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court
formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds
Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of
initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the
conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft Petition for Initiative
on the 1987 Constitution, would constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order
(a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature stations; and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the
COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within
twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient
cause of action and that the Commissions failure or refusal to do so constituted grave abuse of discretion amounting to
lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on
the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989
on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of
Senator Roco, DIK and MABINI, and IBP.[23] The parties thereafter filed, in due time, their separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a
prejudicial procedural question.
THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
159
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is
proper for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC.
The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being so, it
becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65, Section 2,
a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to
an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not
legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and
adverse environmental consequences on the body politic of the questioned Comelec order. The consequent climate of
legal confusion and political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only the
Supreme Court can save a nation in peril and uphold the paramount majesty of the Constitution.[25]
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground
that the COMELEC has no jurisdiction or authority to entertain the petition.[26] The COMELEC made no ruling thereon
evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it
required them to submit within five days their memoranda or oppositions/memoranda.[27] Earlier, or specifically on 6
December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting
the case for hearing. The COMELECs failure to act on Rocos motion to dismiss and its insistence to hold on to the
petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:
SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter
specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because
the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also
asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain
the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil
action for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities
of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.:[28]
A partys standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in
view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this
technicality because the transcendental importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
160
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of the 1986 Constitutional Commission,
stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a
mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation.
Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress,
for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by
the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee
Report No. 7 (Proposed Resolution No. 332).[30] That section reads as follows:
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article ____ Section ____ of the Constitution.[31]
After several interpellations, but before the period of amendments, the Committee submitted a new formulation of the
concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the Commission that
pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7.[32]
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on
how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary
implementing law on this, this will not operate?
161
MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the power
of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of this initiative power would be after five years. It is
reasonably expected that within that five-year period, the National Assembly can come up with the appropriate rules
governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on how this is to be carried out - is it possible that, in
effect, what will be presented to the people for ratification is the work of the legislature rather than of the people? Does
this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that
amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a
constituent assembly and submit that proposal to the people for ratification through the process of an initiative.
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the
people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular
participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in
terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all
legal mandates and that therefore we require a great deal of circumspection in the drafting and in the amendments of
the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the
constitution that would specifically cover the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature
the process or the requirement of determining the mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not
unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable
situations.[33]
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND -- not
to REVISE -- the Constitution; thus:
MR. SUAREZ. ... This proposal was suggested on the theory that this matter of initiative, which came about because of
the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution
as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of
162
the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or
Revision.[34]
xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution.
That was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section
1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.[35]
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which
the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:
xxx
MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications
submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. --
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in
Section 2 of our completed Committee Report No. 7, we accept the proposed amendment.[36]
The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a
legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain
procedures to carry out the initiative...?
MR. DAVIDE. It can.
xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature from asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject
to legislation, provided the legislature cannot determine anymore the percentage of the requirement.
163
MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be
subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be
proposed by the legislative body must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?
MR. DAVIDE. Yes.[37]
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to --
NOT REVISION of -- the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment."
Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the
words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments" not "revision."[38]
Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more
rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-
fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of
calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of
amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end
to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement
approved by the Committee on the Legislative because it would require another voting by the Committee, and the
voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary
sessions.[39]
The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the
Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.[40]
The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986.[41]
Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to
Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third
Readings on 1 August 1986.[42]
164
However, the Committee on Style recommended that the approved Section 2 be amended by changing percent to per
centum and thereof to therein and deleting the phrase by law in the second paragraph so that said paragraph reads: The
Congress[43] shall provide for the implementation of the exercise of this right.[44] This amendment was approved and is
the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII
of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those who answer the question in the
affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of
a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional
Commission to substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress[45] shall by law provide for the implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the
exercise of the right. The rules means the details on how [the right] is to be carried out.[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred
to it, viz., (a) House Bill No. 497,[47] which dealt with the initiative and referendum mentioned in Sections 1 and 32 of
Article VI of the Constitution; and (b) House Bill No. 988,[48] which dealt with the subject matter of House Bill No. 497,
as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in
Section 2 of Article XVII of the Constitution. Senate Bill No. 17[49] solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No.
17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate[50] and by
the House of Representatives.[51] This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to provide for the implementation of the
exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on
amendments to the Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.
(Underscoring supplied).
The inclusion of the word Constitution therein was a delayed afterthought. That word is neither germane nor relevant to
said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the power to directly propose, enact,
approve, or reject, in whole or in part, the Constitution through the system of initiative. They can only do so with respect
to laws, ordinances, or resolutions.
165
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17,
which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases
propose and enact, approve or reject and in whole or in part.[52]
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the
other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution.
Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the
provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case
may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition. (Underscoring supplied).
The use of the clause proposed laws sought to be enacted, approved or rejected, amended or repealed only strengthens
the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and
Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the
latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress
intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it
could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy
of values, the right of the people to directly propose amendments to the Constitution is far more important than the
initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle
on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not
based on the scope of the initiative involved, but on its nature and character. It is national initiative, if what is proposed
to be adopted or enacted is a national law, or a law which only Congress can pass. It is local initiative if what is proposed
to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into
national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:
SEC. 3. Definition of terms --
xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
166
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or
barangay law, resolution or ordinance. (Underscoring supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to
the Constitution.[53]
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle
on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall
become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose
shall become effective fifteen (15) days after certification and proclamation of the Commission. (Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local
governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined by law, may file a petition for indirect
initiative with the House of Representatives, and other legislative bodies....
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency
of the petition for initiative or referendum, which could be petitions for both national and local initiative and
referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local Initiative and Referendum is
misplaced,[54] since the provision therein applies to both national and local initiative and referendum. It reads:
SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the proper courts from declaring null and
void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local
legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation
of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather
intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national
legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the
Philippines; and
(f) The effects of the approval or rejection of the proposition.[55]
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
167
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the invocation of the power of initiative as a
consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to
whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their
approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.[56]
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three
sections, merely (a) mentions, the word Constitution in Section 2; (b) defines initiative on the Constitution and includes
it in the enumeration of the three systems of initiative in Section 3; (c) speaks of plebiscite as the process by which the
proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of
effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. R.A. No.
6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying
it a reluctant lip service.[57]
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms
and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive
matter are fatal and cannot be cured by empowering the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of [the] Act.[58]
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non
delegari potest.[59] The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[60]
168
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and
regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible
delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself,
setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard --
the limits of which are sufficiently determinate and determinable -- to which the delegate must conform in the
performance of his functions.[61] A sufficient standard is one which defines legislative policy, marks its limits, maps out
its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative
command is to be effected.[62]
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy
both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF
INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the
right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735. Reliance on the COMELECs power under Section 2(1) of Article IX-C of the Constitution
is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3
of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the
completeness and the sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the
right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate
legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse
of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the
Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the
required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his
petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition
cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory
pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC
or its personnel before the filing of such petition are (1) to prescribe the form of the petition;[63] (2) to issue through its
Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district;[64]
(3) to assist, through its election registrars, in the establishment of signature stations;[65] and (4) to verify, through its
election registrars, the signatures on the basis of the registry list of voters, voters affidavits, and voters identification
cards used in the immediately preceding election.[66]
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot
be entertained or given cognizance of by the COMELEC. The latter knew that the petition does not fall under any of the
actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That
petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6
December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their
169
memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion
and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of the elective
national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not
academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in
the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with
the constitutional mandate to provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to
have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations
on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on
Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF
PRINTING, respondents.
G.R. No. L-56404 April 2, 1981
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA
and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa Resolutions 1
proposing constitutional amendments, goes further than merely assailing their alleged constitutional infirmity.
170
Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to the
1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The rather unorthodox
aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to
the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty but nothing
else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a
Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would be, quite
clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation
any more persuasive. For reasons to be set forth, we dismiss the petitions.
The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13 respectively,
respondents were required to answer each within ten days from notice. 5 There was a comment on the part of the
respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners and Solicitor
General Estelito P. Mendoza for respondents. With the submission of pertinent data in amplification of the oral
argument, the cases were deemed submitted for decision.
It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive
portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare invalid
its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the vote of the
majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." 9 Such a
statement served a useful purpose. It could even be said that there was a need for it. It served to clear the atmosphere.
It made manifest that, as of January 17, 1973, the present Constitution came into force and effect. With such a
pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court
says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter
of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as that. What cannot be
too strongly stressed is that the function of judicial review has both a positive and a negative aspect. As was so
convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In
declaring what the law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In
the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere
dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since then, this
Court has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely
two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten cases may be cited.
13
2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it
may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number of
votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated earlier,
petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the
1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the
same powers and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as
the interim National Assembly and the regular National Assembly and the Members thereof." 14 One of such powers is
precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National
Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its
members to be ratified in accordance with the Article on Amendments. 15 When, therefore, the Interim Batasang
Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by
virtue Of such impotence Its authority to do so is clearly beyond doubt. It could and did propose the amendments
embodied in the resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is
Concerned, the question of the authority of the Interim Batasang Pambansa to propose amendments is not new. In
Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was
involved although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that
case: "Considering that the proposed amendment of Section 7 of Article X of the Constitution extending the retirement
of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a
restoration of the age of retirement provided in the 1935 Constitution and has been intensively and extensively
171
discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that our
people are unaware of the advantages and disadvantages of the proposed amendment." 17
(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character
that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as Successor of the
Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote from the
opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose of this
contention. Thus: "3. And whether the Constitutional Convention will only propose amendments to the Constitution or
entirely overhaul the present Constitution and propose an entirely new Constitution based on an Ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by
the sovereign people, there can be no debate about the validity of the new Constitution. 4. The fact that the present
Constitution may be revised and replaced with a new one ... is no argument against the validity of the law because
'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is
merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the
sovereign people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal
texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a
principle not only sound in theory but also advantageous in practice.
(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper
submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the
Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body,
can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to
assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened
as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional
convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang Pambansa exercises
its constituent power to propose amendments. Moreover, even on the assumption that the requirement of three-
fourth votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an
amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of
land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the
Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3
on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is
the alleged infirmity? As to the requisite standard for a proper submission, the question may be viewed not only from
the standpoint of the period that must elapse before the holding of the plebiscite but also from the standpoint of such
amendments having been called to the attention of the people so that it could not plausibly be maintained that they
were properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter
should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision." 21 The three resolutions were approved by the
Interim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg.
22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution.
Thus any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied that
this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the
retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be said
that our people are unaware of the advantages and disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.
Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
172
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the application for a temporary restraining order enjoining
the plebiscite scheduled for April 7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October 1976
amendments proposals to the 1973 Constitution for not having been proposed nor adopted in accordance with the
mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 , questioning the
validity of the December 17, 1977 referendum exercise as to the continuance in office as incumbent President and to
be Prime Minister after the organization of the Interim Batasang Pambansa as provided for in Amendment No. 3 of the
1976 Amendments, I am constrained to dissent from the majority decision of dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to propose and approve amendments to the
Constitution as well as to set up the machinery and prescribe the procedure for the ratification of the amendments
proposals has been withheld by the Constitution from the President (Prime Minister) as sole repository of executive
power and that so long as the regular National Assembly provided for in Article VIII of the Constitution had not come to
existence and the proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in
the Constitution must be complied with. This means, under the prevailing doctrine of Tolentino vs. Comelec 4 that the
proposed amendments to be valid must come from the constitutional agency vested with the constituent power to do
so, i.e. in the Interim National Assembly provided in the Transitory Article XVII which would then have to be convened
and not from the executive power as vested in the President (Prime Minister) from whom such constituent power has
been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the October 1976
constitutional amendments which created the Interim Batasang Pambansa in lieu of the Interim National Assembly were
invalid since as ruled by the Court therein, constitutional provisions on amendments "dealing with the procedure or
manner of amending the fundamental law are binding upon the Convention and the other departments of the
government (and) are no less binding upon the people" and "the very Idea of deparcing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976
amendments must necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate my stand in
Sanidad that the doctrine of fair and proper submission firs enunciated by a simple majority of six Justices (of an eleven
member Court prior to the 1973 Constitution which increased the official composition of the Court to fifteen) in
Gonzales vs. Comelec 5 and subsequently officially adopted by the required constitutional two-thirds majority vote of
the Court (of eight votes, then) in Tolentino is fully applicable in the case at bar. The three resolutions proposing
complex, complicated and radical amendments of our very structure of government were considered and approved by
the Interim Batasang Pambansa sitting as a constituent assembly on February 27, 1981. It set the date of the plebiscite
for thirty-nine days later on April 7, 1981 which is totally inadequate and far short of the ninety-day period fixed by the
Constitution for submittal to the people to "sufficiently inform them of the amendments to be voted upon, to
conscientiously deliberate thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" as stated by retired Justice Conrado V. Sanchez in his separate opinion in Gonzales
bears repeating as follows: "... we take the view that the words 'submitted to the people for their ratification,' if
construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people,
an expression of their sovereign will is that it can only be amended by the people expressing themselves according to
the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their
blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach
173
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed amendments and
the meaning, nature and effects thereof. ... What the Constitution in effect directs is that the government, in submitting
an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten
the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is
submission and another is ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so be it. For the
people decree their own fate."
Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded the structure of our
state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said 'A good
Constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought
evolved in excitement, or hot blood, but the sober second thought, which alone if the government is to be safe, can be
allowed efficacy ... Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse."'
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner,

vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR, respondents.
Godofredo Reyes for petitioner.

Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition
to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest
filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly
for the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua,
Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the
first district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the
National Assembly for the said district, for having received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO

PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una
protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas.
174
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of
Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of
Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent be declared elected member of
the National Assembly for the first district of Tayabas, or that the election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest,
filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the
Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which protests against the election of its members should be
presented; (b) that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said
period; and (c) that the protest in question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal"
alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a
member of the National Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the
Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936,
denying herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of
contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests,
which power has been reserved to the Legislative Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction
relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their
internal organization, the Electoral Commission can regulate its proceedings only if the National Assembly has not
availed of its primary power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of
the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should
be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental
question herein raised because it involves an interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral
Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative
Department invested with the jurisdiction to decide "all contests relating to the election, returns, and qualifications of
the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last
day for the presentation of protests against the election of any member of the National Assembly, it acted within its
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jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and
regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in
adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its
quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth Government, and
hence said act is beyond the judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the
National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral
Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own
rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an
instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person"
within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth
the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there was no existing
law fixing the period within which protests against the election of members of the National Assembly should be filed;
that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National
Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason
of its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last
day fixed by paragraph 6 of the rules of the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the
parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to
dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ
of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its
members, and that such confirmation does not operate to limit the period within which protests should be filed as to
deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial
functions, whose decision are final and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person,
within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of
sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance
appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the
Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united States) has no
application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the
issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied
"without passing upon the merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two principal propositions:
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1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the
foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the
protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by
resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of
jurisdiction having been presented, we do not feel justified in evading the issue. Being a case prim impressionis, it
would hardly be consistent with our sense of duty to overlook the broader aspect of the question and leave it
undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the
question of jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief Executive under our
Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This,
however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to
approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also
the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly
operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary
in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the
conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be
established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the
judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the
judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of
its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off
and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are
apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within
harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon
channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment,
and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States where no express
and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of
article VIII of our constitution.
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The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such
expressed through their representatives in the executive and legislative departments of the governments of the
government.
But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional
liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to
mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis,
then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and
hearts than in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the
herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December
9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of
members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of
the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December
9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has
the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December
9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns
and qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the
National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our own, upon the judicial department
is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries.
The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the
limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the
people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the fundamental law between department
powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases.
Discarding the English type and other European types of constitutional government, the framers of our constitution
adopted the American type where the written constitution is interpreted and given effect by the judicial department. In
some countries which have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume
what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have
no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional
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Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the
Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case,
the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of
authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy,
who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus
created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask
these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system.
Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this
court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of
determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of
all contests relating to the election, returns and qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution
of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein
petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able
counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief
Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the
largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in
the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the
election, returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve
into the origin and history of this constitutional provision and inquire into the intention of its framers and the people
who adopted it so that we may properly appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule
that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause
1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the
Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1)
modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives,
respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ."
apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has
had occasion to characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as
"full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the
legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the
Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of
a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for
whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified
executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three
justices designated by the Supreme Court and six members of the house of the legislature to which the contest
corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the
Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was
submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be
designated one each from the two major parties in the Senate and two representatives to be designated one each from
the two major parties in the House of Representatives, and in awarding representation to the executive department in
the persons of two representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on
September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows:
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The elections, returns and qualifications of the members of either house and all cases contesting the election of any of
their members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by
the members of the party having the largest number of votes therein, three elected by the members of the party having
the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief
Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee
on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish
Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a
similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission.
The Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect to the
composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a
unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934,
reads as follows:
(6) The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the
election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the
party having the largest number of votes in the National Assembly, three elected by the members of the party having
the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out
the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly shall be
the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following illuminating
remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft:
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Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6,
page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all
cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask
from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested
shall also be judged by the Electoral Commission.
Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the
word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing
to be submitted to the Electoral Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the election of those
whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives
confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not
necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the
matter of election of a member to a legislative body, because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards
to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a
canvass and proclaims in this case the municipal council proclaims who has been elected, and it ends there, unless
there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest.
The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place
of another who was declared elected. From example, in a case when the residence of the man who has been elected is
in question, or in case the citizenship of the man who has been elected is in question.
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However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first
meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the
powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is
no contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I
arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of
the draft cites cases contesting the election as separate from the first part of the sections which refers to elections,
returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the
phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the
sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the elections
of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the
assembly on its own motion does not have the right to contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds of the
assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility of its
members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the
question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass
upon the qualifications of the members of the National Assembly even though that question has not been raised.
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Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the
members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment
introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference
between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said:
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Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al
efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the
National Assembly" parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros
que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si
enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de
la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte
Suprema, no cree Su Seoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los miembros de la
mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de
sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la
minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
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The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests
relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself,
was defeated by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation
of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more
representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against
forty-six (46), thus maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be
judged by an Electoral Commission, composed of three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the party having the second largest number of votes,
and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of
said justices.
The Style Committee to which the draft was submitted revised it as follows:
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SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief
Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the
largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in
the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and
qualifications of the Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President
Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to"
between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention.
The transfer of the power of determining the election, returns and qualifications of the members of the legislature long
lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment
in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account
of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of
Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14,
1936:
153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and
qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the determination of
controverted elections, and rights of membership. One of the standing committees appointed at the commencement of
each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate
all questions of this description which might be referred to them, and to report their proceedings, with their opinion
thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the
parties and their witnesses and other evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode
of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and
decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections
although a select committee. The committee of privileges and elections although a select committee was usually what is
called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required
to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed
a political character; so that for many years previous to the year 1770, controverted elections had been tried and
determined by the house of commons, as mere party questions, upon which the strength of contending factions might
be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his
office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election
cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly
prostituted, from whence the younger part of the house were insensibly, but too successfully, induced to adopt the
same licentious conduct in more serious matters, and in questions of higher importance to the public welfare." Mr.
George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and,
on the 7th of March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of
controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion
for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their
respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously
notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective,
and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well
known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial
capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the
approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since
known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the
honor of the house of commons, and the security of the constitution, that was ever devised by any minister or
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statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of
the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the
leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to
by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of
the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential
alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions
of the house of commons.
As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the
controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court
of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the
practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as
amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal
Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22];
Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally
heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth
of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In
Hungary, the organic law provides that all protests against the election of members of the Upper House of the Diet are
to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland
of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to
decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding
legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide
for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by
no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of
electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for
such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp.
227-229), creating a special Electoral Commission composed of five members elected by the Senate, five members
elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the
four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting
separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard,
judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court
(Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913]
Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest.
The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in
years and experience. To be sure, many of them were familiar with the history and political development of other
countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional
organ and invested it with the exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done so not only in the light of their own
experience but also having in view the experience of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove
stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the
constitutional the creation of the Electoral Commission is the expression of the wisdom and "ultimate justice of the
people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all
the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional
precedents, however, as the long-felt need of determining legislative contests devoid of partisan considerations which
prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties are equally
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represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by
including in its membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and
execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our
tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an
independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the provision
(section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is
very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature.
But it is a body separate from and independent of the legislature.
The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications
of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in
the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that
power by the National Assembly. And this is as effective a restriction upon the legislative power as an express
prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If
we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the
Electoral Commission and cut off the power of the commission to lay down the period within which protests should be
filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be
invested with the power to determine contested cases involving the election, returns and qualifications of the members
of the National Assembly but subject at all times to the regulative power of the National Assembly. Not only would the
purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated,
but a dual authority would be created with the resultant inevitable clash of powers from time to time. A sad spectacle
would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred
to, but in reality without the necessary means to render that authority effective whenever and whenever the National
Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The
power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control
by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of
the constitutional grant. It is obvious that this result should not be permitted.
We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance
and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the
government and of according validity to its acts, to avoid what he characterized would be practically an unlimited power
of the commission in the admission of protests against members of the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character
to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that
where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the
performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the
absence of any further constitutional provision relating to the procedure to be followed in filing protests before the
Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its
exclusive power to judge all contests relating to the election, returns and qualifications of members of the National
Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative
authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of
the members of the National Assembly. But the possibility of abuse is not argument against the concession of the power
as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the
creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election,
returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and must be
sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be
corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much
confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the
Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the
Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of
discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends
for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much
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to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that
the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its
acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise
jurisdiction.
But independently of the legal and constitutional aspects of the present case, there are considerations of equitable
character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The
Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the
provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on
November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved
by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the
petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was
formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and
approved a resolution fixing said date as the last day for the filing of election protest. When, therefore, the National
Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly,
the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater
of fact, according to certified copies of official records on file in the archives division of the National Assembly attached
to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members of
the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6,
1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National
Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the
National Assembly on the hypothesis that it still retained the incidental power of regulation in such cases had
already barred the presentation of protests before the Electoral Commission had had time to organize itself and
deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution.
This result was not and could not have been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no
protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation upon the
time for the initiation of election contests. While there might have been good reason for the legislative practice of
confirmation of the election of members of the legislature at the time when the power to decide election contests was
still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said
election protests. Confirmation by the National Assembly of the returns of its members against whose election no
protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its
resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the
respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can
discharge his duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said
body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election
officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the
time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs.
21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of
the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the
House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to
enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a
writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c.
125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded
as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative
Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the
time when protests against the election of any of its members should be filed. This was expressly authorized by section
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18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well
as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner
of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the
filing of protests had already expired, each house passed a resolution confirming or approving the returns of such
members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting
off the filing of further protests against the election of those members not theretofore contested (Amistad vs. Claravall
[Isabela], Second Philippine Legislature, Record First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth
Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record First Period, pp. 1121, 1122; Aguilar
vs. Corpus [Masbate], Eighth Philippine Legislature, Record First Period, vol. III, No. 56, pp. 892, 893). The Constitution
has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated
also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of
members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that
power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged
to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the
National Assembly could not do directly, it could not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the theory of separation of power into
the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the
delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the
Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and
allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is
the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the
source of all authority.
(e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to
execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of
the governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of
members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature
was respectively the sole judge of the elections, returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to
contests relating to the elections, returns and qualifications of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried
with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of
filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass
upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of
partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power
to prescribe rules and regulations regarding the manner of conducting said contests.
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(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of
the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members,
but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing
contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to
be required, if any, and to fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.
(m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed
prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the
time within which protests against the election of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of
the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can not in
any manner toll the time for filing protests against the elections, returns and qualifications of members of the National
Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation
and as to the scope and extent of its authority under the facts of the present controversy, we deem it unnecessary to
determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of
sections 226 and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the
petitioner. So ordered.
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G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO,
ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is
this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against
inter-provincial movement of carabaos by transporting carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the
disposition of the carabaos and carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical
condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef
transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National
Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a
supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the
carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to
rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its
presumed validity. 2
189
The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of
the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it
is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by
due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There
is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of
the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question
raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be
considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this
Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A.
That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming modesty in examining constitutional
questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by
the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on
appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases
may be made in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in
fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then
"will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise,
courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is
questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another
distinguished jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of
retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this
Court.
The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule
instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was
provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof
or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to
have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary
power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the
determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will
lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more
appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language
to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a
proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was
sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt
necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an
implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty.
190
The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or
constricting its protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine
themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to
be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise."
11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due
process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea
of fair play." 12
When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would
thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his
peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that
is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then
resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted
by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side"
before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of
the question; the other half must also be considered if an impartial verdict is to be reached based on an informed
appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow
the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only
but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or
useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of
power.
The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed
with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial
system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of
law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome
power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in
the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of
officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty
catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted
exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of
these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on
sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials,
contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a
person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled.
16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the
public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of
the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present
danger.
The protection of the general welfare is the particular function of the police power which both restraints and is
restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and
property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs
and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the
State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police
power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the
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tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under
the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus
populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to
the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in
Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure
was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and
the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the
outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps
to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had
been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the
Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these
animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had
caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their
price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of
these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part
as follows:
To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular class, require such interference; and second, that the means
are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ...
From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration
was required by "the interests of the public generally, as distinguished from those of a particular class" and that the
prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or
draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of
the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or
by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be
measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so
to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly
oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of
these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their
improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as the original executive order, we
cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on the slaughter
of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the purpose sought to be achieved by the questioned
measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate
slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another.
Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to
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another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if
the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow
that there is no reason either to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with
the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao
or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case,
the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after
trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the
property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to
the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the
petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was
ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order
defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out
forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus
denying him the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary
action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In
the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to
wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment.
The properties involved were not even inimical per se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with
the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in
Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced
not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed
penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in
the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable
institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in
the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the
case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain
for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe
when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the
answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely,
there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from
overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method
employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his
defense and is immediately condemned and punished. The conferment on the administrative authorities of the power
to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A unconstitutional.
193
We agree with the respondent court, however, that the police station commander who confiscated the petitioner's
carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that
time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been
impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on
his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel
they had the competence, for all their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would
never have reached us and the taking of his property under the challenged measure would have become a fait accompli
despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in
that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever
they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role
assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert
them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of
the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the
petitioner. No costs.
SO ORDERED.
SPOUSES ALEJANDRO MIRASOL and LILIA E. MIRASOL, petitioners, vs. THE COURT OF APPEALS, PHILIPPINE NATIONAL
BANK, and PHILIPPINE EXCHANGE CO., INC., respondents.
DECISION
QUISUMBING, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals dated July 22, 1996, in CA-G.R. CV No.
38607, as well as of its resolution of January 23, 1997, denying petitioners motion for reconsideration. The challenged
decision reversed the judgment of the Regional Trial Court of Bacolod City, Branch 42 in Civil Case No. 14725.
The factual background of this case, as gleaned from the records, is as follows:
The Mirasols are sugarland owners and planters. In 1973-1974, they produced 70,501.08 piculs[1] of sugar, 25,662.36 of
which were assigned for export. The following crop year, their acreage planted to the same crop was lower, yielding
65,100 piculs of sugar, with 23,696.40 piculs marked for export.
Private respondent Philippine National Bank (PNB) financed the Mirasols sugar production venture for crop years, 1973-
1974 and 1974-1975 under a crop loan financing scheme. Under said scheme, the Mirasols signed Credit Agreements, a
Chattel Mortgage on Standing Crops, and a Real Estate Mortgage in favor of PNB. The Chattel Mortgage empowered
PNB as the petitioners attorney-in-fact to negotiate and to sell the latters sugar in both domestic and export markets
and to apply the proceeds to the payment of their obligations to it.
Exercising his law-making powers under Martial Law, then President Ferdinand Marcos issued Presidential Decree (P.D.)
No. 579[2] in November, 1974. The decree authorized private respondent Philippine Exchange Co., Inc. (PHILEX) to
purchase sugar allocated for export to the United States and to other foreign markets. The price and quantity was
determined by the Sugar Quota Administration, PNB, the Department of Trade and Industry, and finally, by the Office of
the President. The decree further authorized PNB to finance PHILEXs purchases. Finally, the decree directed that
whatever profit PHILEX might realize from sales of sugar abroad was to be remitted to a special fund of the national
government, after commissions, overhead expenses and liabilities had been deducted. The government offices and
194
entities tasked by existing laws and administrative regulations to oversee the sugar export pegged the purchase price of
export sugar in crop years 1973-1974 and 1974-1975 at P180.00 per picul.
PNB continued to finance the sugar production of the Mirasols for crop years 1975-1976 and 1976-1977. These crop
loans and similar obligations were secured by real estate mortgages over several properties of the Mirasols and chattel
mortgages over standing crops. Believing that the proceeds of their sugar sales to PNB, if properly accounted for, were
more than enough to pay their obligations, petitioners asked PNB for an accounting of the proceeds of the sale of their
export sugar. PNB ignored the request. Meanwhile, petitioners continued to avail of other loans from PNB and to make
unfunded withdrawals from their current accounts with said bank. PNB then asked petitioners to settle their due and
demandable accounts. As a result of these demands for payment, petitioners on August 4, 1977, conveyed to PNB real
properties valued at P1,410,466.00 by way of dacion en pago, leaving an unpaid overdrawn account of P1,513,347.78.
On August 10, 1982, the balance of outstanding sugar crop and other loans owed by petitioners to PNB stood at
P15,964,252.93. Despite demands, the Mirasols failed to settle said due and demandable accounts. PNB then proceeded
to extrajudicially foreclose the mortgaged properties. After applying the proceeds of the auction sale of the mortgaged
realties, PNB still had a deficiency claim of P12,551,252.93.
Petitioners continued to ask PNB to account for the proceeds of the sale of their export sugar for crop years 1973-1974
and 1974-1975, insisting that said proceeds, if properly liquidated, could offset their outstanding obligations with the
bank. PNB remained adamant in its stance that under P.D. No. 579, there was nothing to account since under said law,
all earnings from the export sales of sugar pertained to the National Government and were subject to the disposition of
the President of the Philippines for public purposes.
On August 9, 1979, the Mirasols filed a suit for accounting, specific performance, and damages against PNB with the
Regional Trial Court of Bacolod City, docketed as Civil Case No. 14725.
On June 16, 1987, the complaint was amended to implead PHILEX as party-defendant.
The parties agreed at pre-trial to limit the issues to the following:
1. The constitutionality and/or legality of Presidential Decrees numbered 338, 579, and 1192;
2. The determination of the total amount allegedly due the plaintiffs from the defendants corresponding to the allege(d)
unliquidated cost price of export sugar during crop years 1973-1974 and 1974-1975.[3]
After trial on the merits, the trial court decided as follows:
WHEREFORE, the foregoing premises considered, judgment is hereby rendered in favor of the plaintiffs and against the
defendants Philippine National Bank (PNB) and Philippine Exchange Co., Inc. (PHILEX):
(1)Declaring Presidential Decree 579 enacted on November 12, 1974 and all circulars, as well as policies, orders and
other issuances issued in furtherance thereof, unconstitutional and therefore, NULL and VOID being in gross violation of
the Bill of Rights;
(2) Ordering defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the whole amount corresponding to the
residue of the unliquidated actual cost price of 25,662 piculs in export sugar for crop year 1973-1974 at an average price
of P300.00 per picul, deducting therefrom however, the amount of P180.00 already paid in advance plus the allowable
deductions in service fees and other charges;
(3) And also, for the same defendants to pay, jointly and severally, same plaintiffs the whole amount corresponding to
the unpaid actual price of 14,596 piculs of export sugar for crop year 1974-1975 at an average rate of P214.14 per picul
minus however, the sum of P180.00 per picul already paid by the defendants in advance and the allowable deducting
(sic) in service fees and other charges.
The unliquidated amount of money due the plaintiffs but withheld by the defendants, shall earn the legal rate of interest
at 12% per annum computed from the date this action was instituted until fully paid; and, finally
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(4) Directing the defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the sum of P50,000.00 in moral
damages and the amount of P50,000.00 as attorneys fees, plus the costs of this litigation.
SO ORDERED.[4]
The same was, however, modified by a Resolution of the trial court dated May 14, 1992, which added the following
paragraph:
This decision should however, be interpreted without prejudice to whatever benefits that may have accrued in favor of
the plaintiffs with the passage and approval of Republic Act 7202 otherwise known as the Sugar Restitution Law,
authorizing the restitution of losses suffered by the plaintiffs from Crop year 1974-1975 to Crop year 1984-1985
occasioned by the actuations of government-owned and controlled agencies. (Underscoring in the original).
SO ORDERED.[5]
The Mirasols then filed an appeal with the respondent court, docketed as CA-G.R. CV No. 38607, faulting the trial court
for not nullifying the dacion en pago and the mortgage contracts, as well as the foreclosure of their mortgaged
properties. Also faulted was the trial courts failure to award them the full money claims and damages sought from both
PNB and PHILEX.
On July 22, 1996, the Court of Appeals reversed the trial court as follows:
WHEREFORE, this Court renders judgment REVERSING the appealed Decision and entering the following verdict:
1. Declaring the dacion en pago and the foreclosure of the mortgaged properties valid;
2. Ordering the PNB to render an accounting of the sugar account of the Mirasol[s] specifically stating the indebtedness
of the latter to the former and the proceeds of Mirasols 1973-1974 and 1974-1975 sugar production sold pursuant to
and in accordance with P.D. 579 and the issuances therefrom;
3. Ordering the PNB to recompute in accordance with RA 7202 Mirasols indebtedness to it crediting to the latter
payments already made as well as the auction price of their foreclosed real estate and stipulated value of their
properties ceded to PNB in the dacon (sic) en pago;
4. Whatever the result of the recomputation of Mirasols account, the outstanding balance or the excess payment shall
be governed by the pertinent provisions of RA 7202.
SO ORDERED.[6]
On August 28, 1996, petitioners moved for reconsideration, which the appellate court denied on January 23, 1997.
Hence, the instant petition, with petitioners submitting the following issues for our resolution:
1. Whether the Trial Court has jurisdiction to declare a statute unconstitutional without notice to the Solicitor General
where the parties have agreed to submit such issue for the resolution of the Trial Court.
2. Whether PD 579 and subsequent issuances[7] thereof are unconstitutional.
3. Whether the Honorable Court of Appeals committed manifest error in not applying the doctrine of piercing the
corporate veil between respondents PNB and PHILEX.
4. Whether the Honorable Court of Appeals committed manifest error in upholding the validity of the foreclosure on
petitioners property and in upholding the validity of the dacion en pago in this case.
196
5. Whether the Honorable Court of Appeals committed manifest error in not awarding damages to petitioners grounds
relied upon the allowance of the petition. (Underscored in the original)[8]
On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the
constitutionality of a statute, presidential decree, or executive order.[9] The Constitution vests the power of judicial
review or the power to declare a law, treaty, international or executive agreement, presidential decree, order,
instruction, ordinance, or regulation not only in this Court, but in all Regional Trial Courts.[10] In J.M. Tuason and Co. v.
Court of Appeals, 3 SCRA 696 (1961) we held:
Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality
of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue.[11]
Furthermore, B.P. Blg. 129 grants Regional Trial Courts the authority to rule on the conformity of laws or treaties with
the Constitution, thus:
SECTION 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigations is incapable of pecuniary estimation;
The pivotal issue, which we must address, is whether it was proper for the trial court to have exercised judicial review.
Petitioners argue that the Court of Appeals erred in finding that it was improper for the trial court to have declared P.D.
No. 579[12] unconstitutional, since petitioners had not complied with Rule 64, Section 3, of the Rules of Court.
Petitioners contend that said Rule specifically refers only to actions for declaratory relief and not to an ordinary action
for accounting, specific performance, and damages.
Petitioners contentions are bereft of merit. Rule 64, Section 3 of the Rules of Court provides:
SEC. 3. Notice to Solicitor General. In any action which involves the validity of a statute, or executive order or regulation,
the Solicitor General shall be notified by the party attacking the statute, executive order, or regulation, and shall be
entitled to be heard upon such question.
This should be read in relation to Section 1 [c] of P.D. No. 478,[13] which states in part:
SECTION 1. Functions and Organizations (1) The Office of the Solicitor General shallhave the following specific powers
and functions:
xxx
[c] Appear in any court in any action involving the validity of any treaty, law, executive order or proclamation, rule or
regulation when in his judgment his intervention is necessary or when requested by the court.
It is basic legal construction that where words of command such as shall, must, or ought are employed, they are
generally and ordinarily regarded as mandatory.[14] Thus, where, as in Rule 64, Section 3 of the Rules of Court, the word
shall is used, a mandatory duty is imposed, which the courts ought to enforce.
The purpose of the mandatory notice in Rule 64, Section 3 is to enable the Solicitor General to decide whether or not his
intervention in the action assailing the validity of a law or treaty is necessary. To deny the Solicitor General such notice
would be tantamount to depriving him of his day in court. We must stress that, contrary to petitioners stand, the
mandatory notice requirement is not limited to actions involving declaratory relief and similar remedies. The rule itself
provides that such notice is required in any action and not just actions involving declaratory relief. Where there is no
ambiguity in the words used in the rule, there is no room for construction.[15] In all actions assailing the validity of a
statute, treaty, presidential decree, order, or proclamation, notice to the Solicitor General is mandatory.
197
In this case, the Solicitor General was never notified about Civil Case No. 14725. Nor did the trial court ever require him
to appear in person or by a representative or to file any pleading or memorandum on the constitutionality of the
assailed decree. Hence, the Court of Appeals did not err in holding that lack of the required notice made it improper for
the trial court to pass upon the constitutional validity of the questioned presidential decrees.
As regards the second issue, petitioners contend that P.D. No. 579 and its implementing issuances are void for violating
the due process clause and the prohibition against the taking of private property without just compensation. Petitioners
now ask this Court to exercise its power of judicial review.
Jurisprudence has laid down the following requisites for the exercise of this power: First, there must be before the Court
an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for
adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question
of constitutionality must have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be
the very lis mota of the case. [16]
As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other
grounds.[17] The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the
political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully
studied by the legislative and executive departments and found to be in accord with the Constitution before it was
finally enacted and approved.[18]
The present case was instituted primarily for accounting and specific performance. The Court of Appeals correctly ruled
that PNBs obligation to render an accounting is an issue, which can be determined, without having to rule on the
constitutionality of P.D. No. 579. In fact there is nothing in P.D. No. 579, which is applicable to PNBs intransigence in
refusing to give an accounting. The governing law should be the law on agency, it being undisputed that PNB acted as
petitioners agent. In other words, the requisite that the constitutionality of the law in question be the very lis mota of
the case is absent. Thus we cannot rule on the constitutionality of P.D. No. 579.
Petitioners further contend that the passage of R.A. No. 7202[19] rendered P.D. No. 579 unconstitutional, since R.A. No.
7202 affirms that under P.D. 579, the due process clause of the Constitution and the right of the sugar planters not to be
deprived of their property without just compensation were violated.
A perusal of the text of R.A. No. 7202 shows that the repealing clause of said law merely reads:
SEC. 10. All laws, acts, executive orders and circulars in conflict herewith are hereby repealed or modified accordingly.
The settled rule of statutory construction is that repeals by implication are not favored.[20] R.A. No. 7202 cannot be
deemed to have repealed P.D. No. 579. In addition, the power to declare a law unconstitutional does not lie with the
legislature, but with the courts.[21] Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. 579, said repeal is
not a legislative declaration finding the earlier law unconstitutional.
To resolve the third issue, petitioners ask us to apply the doctrine of piercing the veil of corporate fiction with respect to
PNB and PHILEX. Petitioners submit that PHILEX was a wholly-owned subsidiary of PNB prior to the latters privatization.
We note, however, that the appellate court made the following finding of fact:
1. PNB and PHILEX are separate juridical persons and there is no reason to pierce the veil of corporate personality. Both
existed by virtue of separate organic acts. They had separate operations and different purposes and powers.[22]
Findings of fact by the Court of Appeals are conclusive and binding upon this Court unless said findings are not
supported by the evidence.[23] Our jurisdiction in a petition for review under Rule 45 of the Rules of Court is limited
only to reviewing questions of law and factual issues are not within its province.[24] In view of the aforequoted finding
of fact, no manifest error is chargeable to the respondent court for refusing to pierce the veil of corporate fiction.
198
On the fourth issue, the appellate court found that there were two sets of accounts between petitioners and PNB,
namely:
1. The accounts relative to the loan financing scheme entered into by the Mirasols with PNB (PNBs Brief, p. 16) On the
question of how much the PNB lent the Mirasols for crop years 1973-1974 and 1974-1975, the evidence recited by the
lower court in its decision was deficient. We are offered (sic) PNB the amount of FIFTEEN MILLION NINE HUNDRED SIXTY
FOUR THOUSAND TWO HUNDRED FIFTY TWO PESOS and NINETY THREE Centavos (Ps15,964,252.93) but this is the
alleged balance the Mirasols owe PNB covering the years 1975 to 1982.
2. The account relative to the Mirasols current account Numbers 5186 and 5177 involving the amount of THREE MILLION
FOUR HUNDRED THOUSAND Pesos (P3,400,000.00) PNB claims against the Mirasols. (PNBs Brief, p. 17)
In regard to the first set of accounts, besides the proceeds from PNBs sale of sugar (involving the defendant PHILEX in
relation to the export portion of the stock), the PNB foreclosed the Mirasols mortgaged properties realizing therefrom in
1982 THREE MILLION FOUR HUNDRED THIRTEEN THOUSAND Pesos (P3,413,000.00), the PNB itself having acquired the
properties as the highest bidder.
As to the second set of accounts, PNB proposed, and the Mirasols accepted, a dacion en pago scheme by which the
Mirasols conveyed to PNB pieces of property valued at ONE MILLION FOUR HUNDRED TEN THOUSAND FOUR HUNDRED
SIXTY-SIX Pesos (Ps1,410,466.00) (PNBs Brief, pp. 16-17).[25]
Petitioners now claim that the dacion en pago and the foreclosure of their mortgaged properties were void for want of
consideration. Petitioners insist that the loans granted them by PNB from 1975 to 1982 had been fully paid by virtue of
legal compensation. Hence, the foreclosure was invalid and of no effect, since the mortgages were already fully
discharged. It is also averred that they agreed to the dacion only by virtue of a martial law Arrest, Search, and Seizure
Order (ASSO).
We find petitioners arguments unpersuasive. Both the lower court and the appellate court found that the Mirasols
admitted that they were indebted to PNB in the sum stated in the latters counterclaim.[26] Petitioners nonetheless
insist that the same can be offset by the unliquidated amounts owed them by PNB for crop years 1973-74 and 1974-75.
Petitioners argument has no basis in law. For legal compensation to take place, the requirements set forth in Articles
1278 and 1279 of the Civil Code must be present. Said articles read as follows:
Art. 1278. Compensation shall take place when two persons, in their own right, are creditors and debtors of each other.
Art. 1279. In order that compensation may be proper, it is necessary:
(1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of
the same quality if the latter has been stated;
(3) That the two debts are due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in
due time to the debtor.
In the present case, set-off or compensation cannot take place between the parties because:
First, neither of the parties are mutually creditors and debtors of each other. Under P.D. No. 579, neither PNB nor
PHILEX could retain any difference claimed by the Mirasols in the price of sugar sold by the two firms. P.D. No. 579
prescribed where the profits from the sales are to be paid, to wit:
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SECTION 7. x x x After deducting its commission of two and one-half (2-1/2%) percent of gross sales, the balance of the
proceeds of sugar trading operations for every crop year shall be set aside by the Philippine Exchange Company, Inc,. as
profits which shall be paid to a special fund of the National Government subject to the disposition of the President for
public purposes.
Thus, as correctly found by the Court of Appeals, there was nothing with which PNB was supposed to have off-set
Mirasols admitted indebtedness.[27]
Second, compensation cannot take place where one claim, as in the instant case, is still the subject of litigation, as the
same cannot be deemed liquidated.[28]
With respect to the duress allegedly employed by PNB, which impugned petitioners consent to the dacion en pago, both
the trial court and the Court of Appeals found that there was no evidence to support said claim. Factual findings of the
trial court, affirmed by the appellate court, are conclusive upon this Court.[29]
On the fifth issue, the trial court awarded petitioners P50,000.00 in moral damages and P50,000.00 in attorneys fees.
Petitioners now theorize that it was error for the Court of Appeals to have deleted these awards, considering that the
appellate court found PNB breached its duty as an agent to render an accounting to petitioners.
An agents failure to render an accounting to his principal is contrary to Article 1891 of the Civil Code.[30] The erring
agent is liable for damages under Article 1170 of the Civil Code, which states:
Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages.
Article 1170 of the Civil Code, however, must be construed in relation to Article 2217 of said Code which reads:
Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages
may be recovered if they are the proximate result of the defendants wrongful act or omission.
Moral damages are explicitly authorized in breaches of contract where the defendant acted fraudulently or in bad
faith.[31] Good faith, however, is always presumed and any person who seeks to be awarded damages due to the acts of
another has the burden of proving that the latter acted in bad faith, with malice, or with ill motive. In the instant case,
petitioners have failed to show malice or bad faith[32] on the part of PNB in failing to render an accounting. Absent such
showing, moral damages cannot be awarded.
Nor can we restore the award of attorneys fees and costs of suit in favor of petitioners. Under Article 2208 (5) of the
Civil Code, attorneys fees are allowed in the absence of stipulation only if the defendant acted in gross and evident bad
faith in refusing to satisfy the plaintiffs plainly valid, just, and demandable claim. As earlier stated, petitioners have not
proven bad faith on the part of PNB and PHILEX.
WHEREFORE, the instant petition is DENIED and the assailed decision of the respondent court in CA-G.R. CV 38607
AFFIRMED. Costs against petitioners.
SO ORDERED.
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HONORATO C. PEREZ, petitioner,
vs.
PROVINCIAL BOARD OF NUEVA ECIJA, HON. EDUARDO L. JOSON, in his capacity as Governor of Nueva Ecija, and
VALENTIN C. ESCUADRO, in his capacity as Provincial Treasurer of Nueva Ecija, respondents.
ESCOLIN, J.:
This is an original action for certiorari, prohibition and mandamus to annul Resolution No. 228 of the respondent
Provincial Board of Nueva Ecija, dated August 21, 1972; to enjoin respondents from enforcing and implementing said
Resolution; and to compel respondents to recognize petitioner Honorato Perez as acting provincial fiscal of Nueva Ecija.
The factual antecedents which gave rise to this petition are not disputed. When former provincial fiscal of Nueva Ecija
Celestino Juan was appointed judge of the Court of First Instance of Quezon, the Secretary of Justice, in Administrative
Order No. 388, dated September 9, 1971, designated first assistant fiscal Emilio Cecilio of Nueva Ecija as acting provincial
fiscal. 1
On May 10, 1972, President Ferdinand Marcos nominated petitioner Honorato Perez for appointment to the position of
Provincial Fiscal of Nueva Ecija. 2 It appears, however, that the nomination which was submitted to the Commission on
Appointments for confirmation was by-passed upon adjournment sine die of Congress on May 18, 1972. On the
following day, May 19, President Marcos designated petitioner as acting provincial fiscal. 3
Reacting to the said designation, respondent Provincial Board enacted Resolution No. 146 addressed to the Commission
on Appointments, manifesting its opposition to the confirmation of petitioner's appointment. 4 Respondent Governor
Joson also filed a formal protest with the Committee on Justice of the Commission on Appointments, making known his
strong and emphatic opposition to the confirmation. 5 After submission of the evidence in support of the opposition, the
said Committee resolved not to recommend the confirmation of petitioner's appointment. 6
On June 7, 1972, or during the sixth special session of Congress, petitioner was nominated anew for appointment to the
office in question; 7 but the same was likewise by-passed upon adjournment of Congress on June 22, 1972. 8
On August 11, 1972, petitioner took his oath of office as acting provincial fiscal 9 pursuant to the designation extended
by the President on May 19, 1972; and on August 14, 1972, he formally assumed formally assumed office. 10
On August 21, 1972, respondent Provincial Board passed Resolution No. 228, ordering respondent Provincial Treasurer
to stop payment of petitioner's salaries as acting provincial fiscal. 11
The dispute came to a head on August 28, 1972, when respondent treasurer disapproved petitioner's requisition for
various office supplies. His salary vouchers were likewise disapproved by the respondent Governor.
Hence, the instant petition, petitioner raising the following legal questions:
1) Whether or not respondent Provincial Board has the power to pass and enact a resolution not recognizing
herein petitioner as acting provincial fiscal despite the fact that the latter has assumed such office pursuant to a
designation lawfully extended to him by the President of the Philippines.
2) Whether or not respondent Provincial Board has the power to defy and/or pass judgment on the validity of the
said designation and assumption.
We deem it unnecessary to pass upon the issues raised, this petition having become moot and academic. We take
cognizance of the fact that petitioner Perez filed his certificate of candidacy for the office of mayor of Cabanatuan City in
the local elections of January 30, 1980. 12 The mere filing of a certificate of candidacy constitutes forfeiture of his right
to the controverted office under Section 29 of the Election Code of 1978 which provides:
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SEC. 29. Candidates holding appointive office or position. Every person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or
controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy.
Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of
candidacy, subject to the pleasure of the President of the Philippines. (Emphasis supplied).
A petition instituted to establish petitioner's right to an appointive office is rendered moot and academic where his right
to said office has been forfeited by his filing of a certificate of candidacy to an elective office.
ACCORDINGLY, this petition is hereby dismissed. No costs.
SO ORDERED.
THE PROVINCE OF BATANGAS, represented by its Governor, HERMILANDO I. MANDANAS, petitioner, vs. HON. ALBERTO
G. ROMULO, Executive Secretary and Chairman of the Oversight Committee on Devolution; HON. EMILIA BONCODIN,
Secretary, Department of Budget and Management; HON. JOSE D. LINA, JR., Secretary, Department of Interior and Local
Government, respondents.
DECISION
CALLEJO, SR., J.:
The Province of Batangas, represented by its Governor, Hermilando I. Mandanas, filed the present petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court, as amended, to declare as unconstitutional and void
certain provisos contained in the General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly
earmarked for each corresponding year the amount of five billion pesos (P5,000,000,000.00) of the Internal Revenue
Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release
thereof.
Named as respondents are Executive Secretary Alberto G. Romulo, in his capacity as Chairman of the Oversight
Committee on Devolution, Secretary Emilia Boncodin of the Department of Budget and Management (DBM) and
Secretary Jose Lina of the Department of Interior and Local Government (DILG).
Background
On December 7, 1998, then President Joseph Ejercito Estrada issued Executive Order (E.O.) No. 48 entitled
ESTABLISHING A PROGRAM FOR DEVOLUTION ADJUSTMENT AND EQUALIZATION. The program was established to
facilitate the process of enhancing the capacities of local government units (LGUs) in the discharge of the functions and
services devolved to them by the National Government Agencies concerned pursuant to the Local Government Code.[1]
The Oversight Committee (referred to as the Devolution Committee in E.O. No. 48) constituted under Section 533(b) of
Republic Act No. 7160 (The Local Government Code of 1991) has been tasked to formulate and issue the appropriate
rules and regulations necessary for its effective implementation.[2] Further, to address the funding shortfalls of
functions and services devolved to the LGUs and other funding requirements of the program, the Devolution Adjustment
and Equalization Fund was created.[3] For 1998, the DBM was directed to set aside an amount to be determined by the
Oversight Committee based on the devolution status appraisal surveys undertaken by the DILG.[4] The initial fund was
to be sourced from the available savings of the national government for CY 1998.[5] For 1999 and the succeeding years,
the corresponding amount required to sustain the program was to be incorporated in the annual GAA.[6] The Oversight
Committee has been authorized to issue the implementing rules and regulations governing the equitable allocation and
distribution of said fund to the LGUs.[7]
The LGSEF in the GAA of 1999
In Republic Act No. 8745, otherwise known as the GAA of 1999, the program was renamed as the LOCAL GOVERNMENT
SERVICE EQUALIZATION FUND (LGSEF). Under said appropriations law, the amount of P96,780,000,000 was allotted as
the share of the LGUs in the internal revenue taxes. Item No. 1, Special Provisions, Title XXXVI A. Internal Revenue
Allotment of Rep. Act No. 8745 contained the following proviso:
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... PROVIDED, That the amount of FIVE BILLION PESOS (P5,000,000,000) shall be earmarked for the Local Government
Service Equalization Fund for the funding requirements of projects and activities arising from the full and efficient
implementation of devolved functions and services of local government units pursuant to R.A. No. 7160, otherwise
known as the Local Government Code of 1991: PROVIDED, FURTHER, That such amount shall be released to the local
government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the
equitable allocations and distribution of said fund among local government units subject to the guidelines that may be
prescribed by the Oversight Committee on Devolution as constituted pursuant to Book IV, Title III, Section 533(b) of R.A.
No. 7160. The Internal Revenue Allotment shall be released directly by the Department of Budget and Management to
the Local Government Units concerned.
On July 28, 1999, the Oversight Committee (with then Executive Secretary Ronaldo B. Zamora as Chairman) passed
Resolution Nos. OCD-99-003, OCD-99-005 and OCD-99-006 entitled as follows:
OCD-99-005
RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP5 BILLION CY 1999 LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND (LGSEF) AND REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO APPROVE
SAID ALLOCATION SCHEME.
OCD-99-006
RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP4.0 BILLION OF THE 1999 LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND AND ITS CONCOMITANT GENERAL FRAMEWORK, IMPLEMENTING GUIDELINES AND MECHANICS
FOR ITS IMPLEMENTATION AND RELEASE, AS PROMULGATED BY THE OVERSIGHT COMMITTEE ON DEVOLUTION.
OCD-99-003
RESOLUTION REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO APPROVE THE REQUEST OF THE
OVERSIGHT COMMITTEE ON DEVOLUTION TO SET ASIDE TWENTY PERCENT (20%) OF THE LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND (LGSEF) FOR LOCAL AFFIRMATIVE ACTION PROJECTS AND OTHER PRIORITY INITIATIVES FOR LGUs
INSTITUTIONAL AND CAPABILITY BUILDING IN ACCORDANCE WITH THE IMPLEMENTING GUIDELINES AND MECHANICS
AS PROMULGATED BY THE COMMITTEE.
These OCD resolutions were approved by then President Estrada on October 6, 1999.
Under the allocation scheme adopted pursuant to Resolution No. OCD-99-005, the five billion pesos LGSEF was to be
allocated as follows:
1. The PhP4 Billion of the LGSEF shall be allocated in accordance with the allocation scheme and implementing
guidelines and mechanics promulgated and adopted by the OCD. To wit:
a. The first PhP2 Billion of the LGSEF shall be allocated in accordance with the codal formula sharing scheme as
prescribed under the 1991 Local Government Code;
b. The second PhP2 Billion of the LGSEF shall be allocated in accordance with a modified 1992 cost of devolution fund
(CODEF) sharing scheme, as recommended by the respective leagues of provinces, cities and municipalities to the OCD.
The modified CODEF sharing formula is as follows:
Province : 40%
Cities : 20%
Municipalities : 40%
This is applied to the P2 Billion after the approved amounts granted to individual provinces, cities and municipalities as
assistance to cover decrease in 1999 IRA share due to reduction in land area have been taken out.
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2. The remaining PhP1 Billion of the LGSEF shall be earmarked to support local affirmative action projects and other
priority initiatives submitted by LGUs to the Oversight Committee on Devolution for approval in accordance with its
prescribed guidelines as promulgated and adopted by the OCD.
In Resolution No. OCD-99-003, the Oversight Committee set aside the one billion pesos or 20% of the LGSEF to support
Local Affirmative Action Projects (LAAPs) of LGUs. This remaining amount was intended to respond to the urgent need
for additional funds assistance, otherwise not available within the parameters of other existing fund sources. For LGUs
to be eligible for funding under the one-billion-peso portion of the LGSEF, the OCD promulgated the following:
III. CRITERIA FOR ELIGIBILITY:
1. LGUs (province, city, municipality, or barangay), individually or by group or multi-LGUs or leagues of LGUs, especially
those belonging to the 5th and 6th class, may access the fund to support any projects or activities that satisfy any of the
aforecited purposes. A barangay may also access this fund directly or through their respective municipality or city.
2. The proposed project/activity should be need-based, a local priority, with high development impact and are
congruent with the socio-cultural, economic and development agenda of the Estrada Administration, such as food
security, poverty alleviation, electrification, and peace and order, among others.
3. Eligible for funding under this fund are projects arising from, but not limited to, the following areas of concern:
a. delivery of local health and sanitation services, hospital services and other tertiary services;
b. delivery of social welfare services;
c. provision of socio-cultural services and facilities for youth and community development;
d. provision of agricultural and on-site related research;
e. improvement of community-based forestry projects and other local projects on environment and natural resources
protection and conservation;
f. improvement of tourism facilities and promotion of tourism;
g. peace and order and public safety;
h. construction, repair and maintenance of public works and infrastructure, including public buildings and facilities for
public use, especially those destroyed or damaged by man-made or natural calamities and disaster as well as facilities
for water supply, flood control and river dikes;
i. provision of local electrification facilities;
j. livelihood and food production services, facilities and equipment;
k. other projects that may be authorized by the OCD consistent with the aforementioned objectives and guidelines;
4. Except on extremely meritorious cases, as may be determined by the Oversight Committee on Devolution, this
portion of the LGSEF shall not be used in expenditures for personal costs or benefits under existing laws applicable to
governments. Generally, this fund shall cover the following objects of expenditures for programs, projects and activities
arising from the implementation of devolved and regular functions and services:
a. acquisition/procurement of supplies and materials critical to the full and effective implementation of devolved
programs, projects and activities;
b. repair and/or improvement of facilities;
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c. repair and/or upgrading of equipment;
d. acquisition of basic equipment;
e. construction of additional or new facilities;
f. counterpart contribution to joint arrangements or collective projects among groups of municipalities, cities and/or
provinces related to devolution and delivery of basic services.
5. To be eligible for funding, an LGU or group of LGU shall submit to the Oversight Committee on Devolution through the
Department of Interior and Local Governments, within the prescribed schedule and timeframe, a Letter Request for
Funding Support from the Affirmative Action Program under the LGSEF, duly signed by the concerned LGU(s) and
endorsed by cooperators and/or beneficiaries, as well as the duly signed Resolution of Endorsement by the respective
Sanggunian(s) of the LGUs concerned. The LGU-proponent shall also be required to submit the Project Request (PR),
using OCD Project Request Form No. 99-02, that details the following:
(a) general description or brief of the project;
(b) objectives and justifications for undertaking the project, which should highlight the benefits to the locality and the
expected impact to the local program/project arising from the full and efficient implementation of social services and
facilities, at the local levels;
(c) target outputs or key result areas;
(d) schedule of activities and details of requirements;
(e) total cost requirement of the project;
(f) proponents counterpart funding share, if any, and identified source(s) of counterpart funds for the full
implementation of the project;
(g) requested amount of project cost to be covered by the LGSEF.
Further, under the guidelines formulated by the Oversight Committee as contained in Attachment - Resolution No. OCD-
99-003, the LGUs were required to identify the projects eligible for funding under the one-billion-peso portion of the
LGSEF and submit the project proposals thereof and other documentary requirements to the DILG for appraisal. The
project proposals that passed the DILGs appraisal would then be submitted to the Oversight Committee for review,
evaluation and approval. Upon its approval, the Oversight Committee would then serve notice to the DBM for the
preparation of the Special Allotment Release Order (SARO) and Notice of Cash Allocation (NCA) to effect the release of
funds to the said LGUs.
Under Rep. Act No. 8760, otherwise known as the GAA of 2000, the amount of P111,778,000,000 was allotted as the
share of the LGUs in the internal revenue taxes. As in the GAA of 1999, the GAA of 2000 contained a proviso earmarking
five billion pesos of the IRA for the LGSEF. This proviso, found in Item No. 1, Special Provisions, Title XXXVII A. Internal
Revenue Allotment, was similarly worded as that contained in the GAA of 1999.
The Oversight Committee, in its Resolution No. OCD-2000-023 dated June 22, 2000, adopted the following allocation
scheme governing the five billion pesos LGSEF for 2000:
1. The PhP3.5 Billion of the CY 2000 LGSEF shall be allocated to and shared by the four levels of LGUs, i.e., provinces,
cities, municipalities, and barangays, using the following percentage-sharing formula agreed upon and jointly endorsed
by the various Leagues of LGUs:
For Provinces 26% or P 910,000,000

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For Cities 23% or 805,000,000
For Municipalities 35% or 1,225,000,000
For Barangays 16% or 560,000,000
Provided that the respective Leagues representing the provinces, cities, municipalities and barangays shall draw up and
adopt the horizontal distribution/sharing schemes among the member LGUs whereby the Leagues concerned may opt to
adopt direct financial assistance or project-based arrangement, such that the LGSEF allocation for individual LGU shall be
released directly to the LGU concerned;
Provided further that the individual LGSEF shares to LGUs are used in accordance with the general purposes and
guidelines promulgated by the OCD for the implementation of the LGSEF at the local levels pursuant to Res. No. OCD-99-
006 dated October 7, 1999 and pursuant to the Leagues guidelines and mechanism as approved by the OCD;
Provided further that each of the Leagues shall submit to the OCD for its approval their respective allocation scheme,
the list of LGUs with the corresponding LGSEF shares and the corresponding project categories if project-based;
Provided further that upon approval by the OCD, the lists of LGUs shall be endorsed to the DBM as the basis for the
preparation of the corresponding NCAs, SAROs, and related budget/release documents.
2. The remaining P1,500,000,000 of the CY 2000 LGSEF shall be earmarked to support the following initiatives and local
affirmative action projects, to be endorsed to and approved by the Oversight Committee on Devolution in accordance
with the OCD agreements, guidelines, procedures and documentary requirements:
On July 5, 2000, then President Estrada issued a Memorandum authorizing then Executive Secretary Zamora and the
DBM to implement and release the 2.5 billion pesos LGSEF for 2000 in accordance with Resolution No. OCD-2000-023.
Thereafter, the Oversight Committee, now under the administration of President Gloria Macapagal-Arroyo, promulgated
Resolution No. OCD-2001-29 entitled ADOPTING RESOLUTION NO. OCD-2000-023 IN THE ALLOCATION,
IMPLEMENTATION AND RELEASE OF THE REMAINING P2.5 BILLION LGSEF FOR CY 2000. Under this resolution, the
amount of one billion pesos of the LGSEF was to be released in accordance with paragraph 1 of Resolution No. OCD-
2000-23, to complete the 3.5 billion pesos allocated to the LGUs, while the amount of 1.5 billion pesos was allocated for
the LAAP. However, out of the latter amount, P400,000,000 was to be allocated and released as follows: P50,000,000 as
financial assistance to the LAAPs of LGUs; P275,360,227 as financial assistance to cover the decrease in the IRA of LGUs
concerned due to reduction in land area; and P74,639,773 for the LGSEF Capability-Building Fund.
In view of the failure of Congress to enact the general appropriations law for 2001, the GAA of 2000 was deemed re-
enacted, together with the IRA of the LGUs therein and the proviso earmarking five billion pesos thereof for the LGSEF.
On January 9, 2002, the Oversight Committee adopted Resolution No. OCD-2002-001 allocating the five billion pesos
LGSEF for 2001 as follows:
Modified Codal Formula P 3.000 billion

Priority Projects 1.900 billion
Capability Building Fund .100 billion
P 5.000 billion
RESOLVED FURTHER, that the P3.0 B of the CY 2001 LGSEF which is to be allocated according to the modified codal
formula shall be released to the four levels of LGUs, i.e., provinces, cities, municipalities and barangays, as follows:
LGUs Percentage Amount
Provinces 25 P 0.750 billion
Cities 25 0.750
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Municipalities 35 1.050
Barangays 15 0.450
100 P 3.000 billion
RESOLVED FURTHER, that the P1.9 B earmarked for priority projects shall be distributed according to the following
criteria:
1.0 For projects of the 4th, 5th and 6th class LGUs; or
2.0 Projects in consonance with the Presidents State of the Nation Address (SONA)/summit commitments.
RESOLVED FURTHER, that the remaining P100 million LGSEF capability building fund shall be distributed in accordance
with the recommendation of the Leagues of Provinces, Cities, Municipalities and Barangays, and approved by the OCD.
Upon receipt of a copy of the above resolution, Gov. Mandanas wrote to the individual members of the Oversight
Committee seeking the reconsideration of Resolution No. OCD-2002-001. He also wrote to Pres. Macapagal-Arroyo
urging her to disapprove said resolution as it violates the Constitution and the Local Government Code of 1991.
On January 25, 2002, Pres. Macapagal-Arroyo approved Resolution No. OCD-2002-001.
The Petitioners Case
The petitioner now comes to this Court assailing as unconstitutional and void the provisos in the GAAs of 1999, 2000 and
2001, relating to the LGSEF. Similarly assailed are the Oversight Committees Resolutions Nos. OCD-99-003, OCD-99-005,
OCD-99-006, OCD-2000-023, OCD-2001-029 and OCD-2002-001 issued pursuant thereto. The petitioner submits that the
assailed provisos in the GAAs and the OCD resolutions, insofar as they earmarked the amount of five billion pesos of the
IRA of the LGUs for 1999, 2000 and 2001 for the LGSEF and imposed conditions for the release thereof, violate the
Constitution and the Local Government Code of 1991.
Section 6, Article X of the Constitution is invoked as it mandates that the just share of the LGUs shall be automatically
released to them. Sections 18 and 286 of the Local Government Code of 1991, which enjoin that the just share of the
LGUs shall be automatically and directly released to them without need of further action are, likewise, cited.
The petitioner posits that to subject the distribution and release of the five-billion-peso portion of the IRA, classified as
the LGSEF, to compliance by the LGUs with the implementing rules and regulations, including the mechanisms and
guidelines prescribed by the Oversight Committee, contravenes the explicit directive of the Constitution that the LGUs
share in the national taxes shall be automatically released to them. The petitioner maintains that the use of the word
shall must be given a compulsory meaning.
To further buttress this argument, the petitioner contends that to vest the Oversight Committee with the authority to
determine the distribution and release of the LGSEF, which is a part of the IRA of the LGUs, is an anathema to the
principle of local autonomy as embodied in the Constitution and the Local Government Code of 1991. The petitioner
cites as an example the experience in 2001 when the release of the LGSEF was long delayed because the Oversight
Committee was not able to convene that year and no guidelines were issued therefor. Further, the possible disapproval
by the Oversight Committee of the project proposals of the LGUs would result in the diminution of the latters share in
the IRA.
Another infringement alleged to be occasioned by the assailed OCD resolutions is the improper amendment to Section
285 of the Local Government Code of 1991 on the percentage sharing of the IRA among the LGUs. Said provision
allocates the IRA as follows: Provinces 23%; Cities 23%; Municipalities 34%; and Barangays 20%.[8] This formula has
been improperly amended or modified, with respect to the five-billion-peso portion of the IRA allotted for the LGSEF, by
the assailed OCD resolutions as they invariably provided for a different sharing scheme.
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The modifications allegedly constitute an illegal amendment by the executive branch of a substantive law. Moreover,
the petitioner mentions that in the Letter dated December 5, 2001 of respondent Executive Secretary Romulo addressed
to respondent Secretary Boncodin, the former endorsed to the latter the release of funds to certain LGUs from the
LGSEF in accordance with the handwritten instructions of President Arroyo. Thus, the LGUs are at a loss as to how a
portion of the LGSEF is actually allocated. Further, there are still portions of the LGSEF that, to date, have not been
received by the petitioner; hence, resulting in damage and injury to the petitioner.
The petitioner prays that the Court declare as unconstitutional and void the assailed provisos relating to the LGSEF in the
GAAs of 1999, 2000 and 2001 and the assailed OCD resolutions (Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-
006, OCD-2000-023, OCD-2001-029 and OCD-2002-001) issued by the Oversight Committee pursuant thereto. The
petitioner, likewise, prays that the Court direct the respondents to rectify the unlawful and illegal distribution and
releases of the LGSEF for the aforementioned years and release the same in accordance with the sharing formula under
Section 285 of the Local Government Code of 1991. Finally, the petitioner urges the Court to declare that the entire IRA
should be released automatically without further action by the LGUs as required by the Constitution and the Local
Government Code of 1991.
The Respondents Arguments
The respondents, through the Office of the Solicitor General, urge the Court to dismiss the petition on procedural and
substantive grounds. On the latter, the respondents contend that the assailed provisos in the GAAs of 1999, 2000 and
2001 and the assailed resolutions issued by the Oversight Committee are not constitutionally infirm. The respondents
advance the view that Section 6, Article X of the Constitution does not specify that the just share of the LGUs shall be
determined solely by the Local Government Code of 1991. Moreover, the phrase as determined by law in the same
constitutional provision means that there exists no limitation on the power of Congress to determine what is the just
share of the LGUs in the national taxes. In other words, Congress is the arbiter of what should be the just share of the
LGUs in the national taxes.
The respondents further theorize that Section 285 of the Local Government Code of 1991, which provides for the
percentage sharing of the IRA among the LGUs, was not intended to be a fixed determination of their just share in the
national taxes. Congress may enact other laws, including appropriations laws such as the GAAs of 1999, 2000 and 2001,
providing for a different sharing formula. Section 285 of the Local Government Code of 1991 was merely intended to be
the default share of the LGUs to do away with the need to determine annually by law their just share. However, the
LGUs have no vested right in a permanent or fixed percentage as Congress may increase or decrease the just share of
the LGUs in accordance with what it believes is appropriate for their operation. There is nothing in the Constitution
which prohibits Congress from making such determination through the appropriations laws. If the provisions of a
particular statute, the GAA in this case, are within the constitutional power of the legislature to enact, they should be
sustained whether the courts agree or not in the wisdom of their enactment.
On procedural grounds, the respondents urge the Court to dismiss the petition outright as the same is defective. The
petition allegedly raises factual issues which should be properly threshed out in the lower courts, not this Court, not
being a trier of facts. Specifically, the petitioners allegation that there are portions of the LGSEF that it has not, to date,
received, thereby causing it (the petitioner) injury and damage, is subject to proof and must be substantiated in the
proper venue, i.e., the lower courts.
Further, according to the respondents, the petition has already been rendered moot and academic as it no longer
presents a justiciable controversy. The IRAs for the years 1999, 2000 and 2001, have already been released and the
government is now operating under the 2003 budget. In support of this, the respondents submitted certifications issued
by officers of the DBM attesting to the release of the allocation or shares of the petitioner in the LGSEF for 1999, 2000
and 2001. There is, therefore, nothing more to prohibit.
Finally, the petitioner allegedly has no legal standing to bring the suit because it has not suffered any injury. In fact, the
petitioners just share has even increased. Pursuant to Section 285 of the Local Government Code of 1991, the share of
the provinces is 23%. OCD Nos. 99-005, 99-006 and 99-003 gave the provinces 40% of P2 billion of the LGSEF. OCD Nos.
2000-023 and 2001-029 apportioned 26% of P3.5 billion to the provinces. On the other hand, OCD No. 2001-001
allocated 25% of P3 billion to the provinces. Thus, the petitioner has not suffered any injury in the implementation of
the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions.
208
The Ruling of the Court
Procedural Issues
Before resolving the petition on its merits, the Court shall first rule on the following procedural issues raised by the
respondents: (1) whether the petitioner has legal standing or locus standi to file the present suit; (2) whether the
petition involves factual questions that are properly cognizable by the lower courts; and (3) whether the issue had been
rendered moot and academic.
The petitioner has locus standi

to maintain the present suit
The gist of the question of standing is whether a party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.[9] Accordingly, it has been held that the interest of
a party assailing the constitutionality of a statute must be direct and personal. Such party must be able to show, not only
that the law or any government act is invalid, but also that he has sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear
that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[10]
The Court holds that the petitioner possesses the requisite standing to maintain the present suit. The petitioner, a local
government unit, seeks relief in order to protect or vindicate an interest of its own, and of the other LGUs. This interest
pertains to the LGUs share in the national taxes or the IRA. The petitioners constitutional claim is, in substance, that the
assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions contravene Section 6, Article X of the
Constitution, mandating the automatic release to the LGUs of their share in the national taxes. Further, the injury that
the petitioner claims to suffer is the diminution of its share in the IRA, as provided under Section 285 of the Local
Government Code of 1991, occasioned by the implementation of the assailed measures. These allegations are sufficient
to grant the petitioner standing to question the validity of the assailed provisos in the GAAs of 1999, 2000 and 2001, and
the OCD resolutions as the petitioner clearly has a plain, direct and adequate interest in the manner and distribution of
the IRA among the LGUs.
The petition involves a significant

legal issue
The crux of the instant controversy is whether the assailed provisos contained in the GAAs of 1999, 2000 and 2001, and
the OCD resolutions infringe the Constitution and the Local Government Code of 1991. This is undoubtedly a legal
question. On the other hand, the following facts are not disputed:
1. The earmarking of five billion pesos of the IRA for the LGSEF in the assailed provisos in the GAAs of 1999, 2000 and re-
enacted budget for 2001;
2. The promulgation of the assailed OCD resolutions providing for the allocation schemes covering the said five billion
pesos and the implementing rules and regulations therefor; and
3. The release of the LGSEF to the LGUs only upon their compliance with the implementing rules and regulations,
including the guidelines and mechanisms, prescribed by the Oversight Committee.
Considering that these facts, which are necessary to resolve the legal question now before this Court, are no longer in
issue, the same need not be determined by a trial court.[11] In any case, the rule on hierarchy of courts will not prevent
this Court from assuming jurisdiction over the petition. The said rule may be relaxed when the redress desired cannot be
obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy
within and calling for the exercise of this Courts primary jurisdiction.[12]
209
The crucial legal issue submitted for resolution of this Court entails the proper legal interpretation of constitutional and
statutory provisions. Moreover, the transcendental importance of the case, as it necessarily involves the application of
the constitutional principle on local autonomy, cannot be gainsaid. The nature of the present controversy, therefore,
warrants the relaxation by this Court of procedural rules in order to resolve the case forthwith.
The substantive issue needs to be resolved

notwithstanding the supervening events
Granting arguendo that, as contended by the respondents, the resolution of the case had already been overtaken by
supervening events as the IRA, including the LGSEF, for 1999, 2000 and 2001, had already been released and the
government is now operating under a new appropriations law, still, there is compelling reason for this Court to resolve
the substantive issue raised by the instant petition. Supervening events, whether intended or accidental, cannot prevent
the Court from rendering a decision if there is a grave violation of the Constitution.[13] Even in cases where supervening
events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar and public.[14]
Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will
decide a question otherwise moot and academic if it is capable of repetition, yet evading review.[15] For the GAAs in the
coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not
be decided before another GAA is enacted. It, thus, behooves this Court to make a categorical ruling on the substantive
issue now.
Substantive Issue
As earlier intimated, the resolution of the substantive legal issue in this case calls for the application of a most important
constitutional policy and principle, that of local autonomy.[16] In Article II of the Constitution, the State has expressly
adopted as a policy that:
Section 25. The State shall ensure the autonomy of local governments.
An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the autonomy of LGUs.
Section 2 thereof reiterates the State policy in this wise:
Section 2. The territorial and political subdivisions shall enjoy local autonomy.
Consistent with the principle of local autonomy, the Constitution confines the Presidents power over the LGUs to one of
general supervision.[17] This provision has been interpreted to exclude the power of control. The distinction between
the two powers was enunciated in Drilon v. Lim:[18]
An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order
the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such
authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order
the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for doing
the act. He has no judgment on this matter except to see to it that the rules are followed.[19]
The Local Government Code of 1991[20] was enacted to flesh out the mandate of the Constitution.[21] The State policy
on local autonomy is amplified in Section 2 thereof:
Sec. 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.
210
Guided by these precepts, the Court shall now determine whether the assailed provisos in the GAAs of 1999, 2000 and
2001, earmarking for each corresponding year the amount of five billion pesos of the IRA for the LGSEF and the OCD
resolutions promulgated pursuant thereto, transgress the Constitution and the Local Government Code of 1991.
The assailed provisos in the GAAs of 1999, 2000

and 2001 and the OCD resolutions violate the
constitutional precept on local autonomy
Section 6, Article X of the Constitution reads:
Sec. 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be
automatically released to them.
When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall have a just share in the
national taxes; (2) the just share shall be determined by law; and (3) the just share shall be automatically released to the
LGUs.
The Local Government Code of 1991, among its salient provisions, underscores the automatic release of the LGUs just
share in this wise:
Sec. 18. Power to Generate and Apply Resources. Local government units shall have the power and authority to establish
an organization that shall be responsible for the efficient and effective implementation of their development plans,
program objectives and priorities; to create their own sources of revenue and to levy taxes, fees, and charges which shall
accrue exclusively for their use and disposition and which shall be retained by them; to have a just share in national
taxes which shall be automatically and directly released to them without need of further action;
...
Sec. 286. Automatic Release of Shares. (a) The share of each local government unit shall be released, without need of
any further action, directly to the provincial, city, municipal or barangay treasurer, as the case may be, on a quarterly
basis within five (5) days after the end of each quarter, and which shall not be subject to any lien or holdback that may
be imposed by the national government for whatever purpose.
(b) Nothing in this Chapter shall be understood to diminish the share of local government units under existing laws.
Websters Third New International Dictionary defines automatic as involuntary either wholly or to a major extent so that
any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an
automaton. Further, the word automatically is defined as in an automatic manner: without thought or conscious
intention. Being automatic, thus, connotes something mechanical, spontaneous and perfunctory. As such, the LGUs are
not required to perform any act to receive the just share accruing to them from the national coffers. As emphasized by
the Local Government Code of 1991, the just share of the LGUs shall be released to them without need of further action.
Construing Section 286 of the LGC, we held in Pimentel, Jr. v. Aguirre,[22] viz:
Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is the automatic release of the
shares of LGUs in the National internal revenue. This is mandated by no less than the Constitution. The Local
Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days
after every quarter of the year and shall not be subject to any lien or holdback that may be imposed by the national
government for whatever purpose. As a rule, the term SHALL is a word of command that must be given a compulsory
meaning. The provision is, therefore, IMPERATIVE.
Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs IRA pending
the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation in
the country. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a
holdback, which means something held back or withheld, often temporarily. Hence, the temporary nature of the
retention by the national government does not matter. Any retention is prohibited.
211
In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has
no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments.
Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs IRA, but the rule of law
requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily,
laudable purposes must be carried out by legal methods.[23]
The just share of the LGUs is incorporated as the IRA in the appropriations law or GAA enacted by Congress annually.
Under the assailed provisos in the GAAs of 1999, 2000 and 2001, a portion of the IRA in the amount of five billion pesos
was earmarked for the LGSEF, and these provisos imposed the condition that such amount shall be released to the local
government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the
equitable allocations and distribution of said fund among local government units subject to the guidelines that may be
prescribed by the Oversight Committee on Devolution. Pursuant thereto, the Oversight Committee, through the assailed
OCD resolutions, apportioned the five billion pesos LGSEF such that:
For 1999
P2 billion - allocated according to Sec. 285 LGC

P2 billion - Modified Sharing Formula (Provinces 40%;
Cities 20%; Municipalities 40%)
P1 billion projects (LAAP) approved by OCD.[24]
For 2000
P3.5 billion Modified Sharing Formula (Provinces 26%;

Cities 23%; Municipalities 35%; Barangays 16%);
P1.5 billion projects (LAAP) approved by the OCD.[25]
For 2001
P3 billion Modified Sharing Formula (Provinces 25%;

Cities 25%; Municipalities 35%; Barangays 15%)
P1.9 billion priority projects
P100 million capability building fund.[26]
Significantly, the LGSEF could not be released to the LGUs without the Oversight Committees prior approval. Further,
with respect to the portion of the LGSEF allocated for various projects of the LGUs (P1 billion for 1999; P1.5 billion for
2000 and P2 billion for 2001), the Oversight Committee, through the assailed OCD resolutions, laid down guidelines and
mechanisms that the LGUs had to comply with before they could avail of funds from this portion of the LGSEF. The
guidelines required (a) the LGUs to identify the projects eligible for funding based on the criteria laid down by the
Oversight Committee; (b) the LGUs to submit their project proposals to the DILG for appraisal; (c) the project proposals
that passed the appraisal of the DILG to be submitted to the Oversight Committee for review, evaluation and approval. It
was only upon approval thereof that the Oversight Committee would direct the DBM to release the funds for the
projects.
To the Courts mind, the entire process involving the distribution and release of the LGSEF is constitutionally
impermissible. The LGSEF is part of the IRA or just share of the LGUs in the national taxes. To subject its distribution and
release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally
prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999,
2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and
statutory mandate that the just share of the LGUs shall be automatically released to them. The LGUs are, thus, placed at
the mercy of the Oversight Committee.
Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to mean exactly what it says,
and courts have no choice but to see to it that the mandate is obeyed.[27] Moreover, as correctly posited by the
petitioner, the use of the word shall connotes a mandatory order. Its use in a statute denotes an imperative obligation
and is inconsistent with the idea of discretion.[28]
212
Indeed, the Oversight Committee exercising discretion, even control, over the distribution and release of a portion of
the IRA, the LGSEF, is an anathema to and subversive of the principle of local autonomy as embodied in the Constitution.
Moreover, it finds no statutory basis at all as the Oversight Committee was created merely to formulate the rules and
regulations for the efficient and effective implementation of the Local Government Code of 1991 to ensure compliance
with the principles of local autonomy as defined under the Constitution.[29] In fact, its creation was placed under the
title of Transitory Provisions, signifying its ad hoc character. According to Senator Aquilino Q. Pimentel, the principal
author and sponsor of the bill that eventually became Rep. Act No. 7160, the Committees work was supposed to be
done a year from the approval of the Code, or on October 10, 1992.[30] The Oversight Committees authority is
undoubtedly limited to the implementation of the Local Government Code of 1991, not to supplant or subvert the same.
Neither can it exercise control over the IRA, or even a portion thereof, of the LGUs.
That the automatic release of the IRA was precisely intended to guarantee and promote local autonomy can be gleaned
from the discussion below between Messrs. Jose N. Nolledo and Regalado M. Maambong, then members of the 1986
Constitutional Commission, to wit:
MR. MAAMBONG. Unfortunately, under Section 198 of the Local Government Code, the existence of subprovinces is still
acknowledged by the law, but the statement of the Gentleman on this point will have to be taken up probably by the
Committee on Legislation. A second point, Mr. Presiding Officer, is that under Article 2, Section 10 of the 1973
Constitution, we have a provision which states:
The State shall guarantee and promote the autonomy of local government units, especially the barrio, to insure their
fullest development as self-reliant communities.
This provision no longer appears in the present configuration; does this mean that the concept of giving local autonomy
to local governments is no longer adopted as far as this Article is concerned?
MR. NOLLEDO. No. In the report of the Committee on Preamble, National Territory, and Declaration of Principles, that
concept is included and widened upon the initiative of Commissioner Bennagen.
MR. MAAMBONG. Thank you for that.
With regard to Section 6, sources of revenue, the creation of sources as provided by previous law was subject to
limitations as may be provided by law, but now, we are using the term subject to such guidelines as may be fixed by law.
In Section 7, mention is made about the unique, distinct and exclusive charges and contributions, and in Section 8, we
talk about exclusivity of local taxes and the share in the national wealth. Incidentally, I was one of the authors of this
provision, and I am very thankful. Does this indicate local autonomy, or was the wording of the law changed to give
more autonomy to the local government units?[31]
MR. NOLLEDO. Yes. In effect, those words indicate also decentralization because local political units can collect taxes,
fees and charges subject merely to guidelines, as recommended by the league of governors and city mayors, with whom
I had a dialogue for almost two hours. They told me that limitations may be questionable in the sense that Congress may
limit and in effect deny the right later on.
MR. MAAMBONG. Also, this provision on automatic release of national tax share points to more local autonomy. Is this
the intention?
MR. NOLLEDO. Yes, the Commissioner is perfectly right.[32]
The concept of local autonomy was explained in Ganzon v. Court of Appeals[33] in this wise:
As the Constitution itself declares, local autonomy means a more responsive and accountable local government
structure instituted through a system of decentralization. The Constitution, as we observed, does nothing more than to
break up the monopoly of the national government over the affairs of local governments and as put by political
adherents, to liberate the local governments from the imperialism of Manila. Autonomy, however, is not meant to end
the relation of partnership and interdependence between the central administration and local government units, or
otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under
the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit
paradoxically, to enhance self-government.
213
As we observed in one case, decentralization means devolution of national administration but not power to the local
levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of

administration when the central government delegates administrative powers to political subdivisions in order to
broaden the base of government power and in the process to make local governments more responsive and
accountable and ensure their fullest development as self-reliant communities and make them more effective partners in
the pursuit of national development and social progress. At the same time, it relieves the central government of the
burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general
supervision over them, but only to ensure that local affairs are administered according to law. He has no control over
their acts in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in the [sic] favor of local
governments [sic] units declared to be autonomous. In that case, the autonomous government is free to chart its own
destiny and shape its future with minimum intervention from central authorities. According to a constitutional author,
decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency.[34]
Local autonomy includes both administrative and fiscal autonomy. The fairly recent case of Pimentel v. Aguirre[35] is
particularly instructive. The Court declared therein that local fiscal autonomy includes the power of the LGUs to, inter
alia, allocate their resources in accordance with their own priorities:
Under existing law, local government units, in addition to having administrative autonomy in the exercise of their
functions, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have the power to create their
own sources of revenue in addition to their equitable share in the national taxes released by the national government,
as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of
their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the
national level and imposed on local governments, whether they are relevant to local needs and resources or not ...[36]
Further, a basic feature of local fiscal autonomy is the constitutionally mandated automatic release of the shares of LGUs
in the national internal revenue.[37]
Following this ratiocination, the Court in Pimentel struck down as unconstitutional Section 4 of Administrative Order
(A.O.) No. 372 which ordered the withholding, effective January 1, 1998, of ten percent of the LGUs IRA pending the
assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation.
In like manner, the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions constitute a
withholding of a portion of the IRA. They put on hold the distribution and release of the five billion pesos LGSEF and
subject the same to the implementing rules and regulations, including the guidelines and mechanisms prescribed by the
Oversight Committee from time to time. Like Section 4 of A.O. 372, the assailed provisos in the GAAs of 1999, 2000 and
2001 and the OCD resolutions effectively encroach on the fiscal autonomy enjoyed by the LGUs and must be struck
down. They cannot, therefore, be upheld.
The assailed provisos in the GAAs of 1999, 2000
and 2001 and the OCD resolutions cannot amend
Section 285 of the Local Government Code of 1991
Section 284[38] of the Local Government Code provides that, beginning the third year of its effectivity, the LGUs share in
the national internal revenue taxes shall be 40%. This percentage is fixed and may not be reduced except in the event
the national government incurs an unmanageable public sector deficit" and only upon compliance with stringent
requirements set forth in the same section:
Sec. 284. ...
Provided, That in the event that the national government incurs an unmanageable public sector deficit, the President of
the Philippines is hereby authorized, upon recommendation of Secretary of Finance, Secretary of Interior and Local
Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment
of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of the
national internal revenue taxes of the third fiscal year preceding the current fiscal year; Provided, further That in the first
year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal
revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive
the amount equivalent to the cost of devolved personnel services.
214
Thus, from the above provision, the only possible exception to the mandatory automatic release of the LGUs IRA is if the
national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding
third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections
for the current fiscal year. The adjustment may even be made on a quarterly basis depending on the actual collections of
national internal revenue taxes for the quarter of the current fiscal year. In the instant case, however, there is no
allegation that the national internal revenue tax collections for the fiscal years 1999, 2000 and 2001 have fallen
compared to the preceding three fiscal years.
Section 285 then specifies how the IRA shall be allocated among the LGUs:
Sec. 285. Allocation to Local Government Units. The share of local government units in the internal revenue allotment
shall be allocated in the following manner:
(a) Provinces Twenty-three (23%)
(b) Cities Twenty-three percent (23%);
(c) Municipalities Thirty-four (34%); and
(d) Barangays Twenty percent (20%).
However, this percentage sharing is not followed with respect to the five billion pesos LGSEF as the assailed OCD
resolutions, implementing the assailed provisos in the GAAs of 1999, 2000 and 2001, provided for a different sharing
scheme. For example, for 1999, P2 billion of the LGSEF was allocated as follows: Provinces 40%; Cities 20%;
Municipalities 40%.[39] For 2000, P3.5 billion of the LGSEF was allocated in this manner: Provinces 26%; Cities 23%;
Municipalities 35%; Barangays 26%.[40] For 2001, P3 billion of the LGSEF was allocated, thus: Provinces 25%; Cities 25%;
Municipalities 35%; Barangays 15%.[41]
The respondents argue that this modification is allowed since the Constitution does not specify that the just share of the
LGUs shall only be determined by the Local Government Code of 1991. That it is within the power of Congress to enact
other laws, including the GAAs, to increase or decrease the just share of the LGUs. This contention is untenable. The
Local Government Code of 1991 is a substantive law. And while it is conceded that Congress may amend any of the
provisions therein, it may not do so through appropriations laws or GAAs. Any amendment to the Local Government
Code of 1991 should be done in a separate law, not in the appropriations law, because Congress cannot include in a
general appropriation bill matters that should be more properly enacted in a separate legislation.[42]
A general appropriations bill is a special type of legislation, whose content is limited to specified sums of money
dedicated to a specific purpose or a separate fiscal unit.[43] Any provision therein which is intended to amend another
law is considered an inappropriate provision. The category of inappropriate provisions includes unconstitutional
provisions and provisions which are intended to amend other laws, because clearly these kinds of laws have no place in
an appropriations bill.[44]
Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein, which are fixed in the Local
Government Code of 1991, are matters of general and substantive law. To permit Congress to undertake these
amendments through the GAAs, as the respondents contend, would be to give Congress the unbridled authority to
unduly infringe the fiscal autonomy of the LGUs, and thus put the same in jeopardy every year. This, the Court cannot
sanction.
It is relevant to point out at this juncture that, unlike those of 1999, 2000 and 2001, the GAAs of 2002 and 2003 do not
contain provisos similar to the herein assailed provisos. In other words, the GAAs of 2002 and 2003 have not earmarked
any amount of the IRA for the LGSEF. Congress had perhaps seen fit to discontinue the practice as it recognizes its
infirmity. Nonetheless, as earlier mentioned, this Court has deemed it necessary to make a definitive ruling on the
matter in order to prevent its recurrence in future appropriations laws and that the principles enunciated herein would
serve to guide the bench, bar and public.
Conclusion
In closing, it is well to note that the principle of local autonomy, while concededly expounded in greater detail in the
present Constitution, dates back to the turn of the century when President William McKinley, in his Instructions to the
Second Philippine Commission dated April 7, 1900, ordered the new Government to devote their attention in the first
instance to the establishment of municipal governments in which the natives of the Islands, both in the cities and in the
rural communities, shall be afforded the opportunity to manage their own affairs to the fullest extent of which they are
capable, and subject to the least degree of supervision and control in which a careful study of their capacities and
observation of the workings of native control show to be consistent with the maintenance of law, order and loyalty.[45]
While the 1935 Constitution had no specific article on local autonomy, nonetheless, it limited the executive power over
local governments to general supervision ... as may be provided by law.[46] Subsequently, the 1973 Constitution
explicitly stated that [t]he State shall guarantee and promote the autonomy of local government units, especially the
barangay to ensure their fullest development as self-reliant communities.[47] An entire article on Local Government was
215
incorporated therein. The present Constitution, as earlier opined, has broadened the principle of local autonomy. The 14
sections in Article X thereof markedly increased the powers of the local governments in order to accomplish the goal of a
more meaningful local autonomy.
Indeed, the value of local governments as institutions of democracy is measured by the degree of autonomy that they
enjoy.[48] As eloquently put by M. De Tocqueville, a distinguished French political writer, [l]ocal assemblies of citizens
constitute the strength of free nations. Township meetings are to liberty what primary schools are to science; they bring
it within the peoples reach; they teach men how to use and enjoy it. A nation may establish a system of free
governments but without the spirit of municipal institutions, it cannot have the spirit of liberty.[49]
Our national officials should not only comply with the constitutional provisions on local autonomy but should also
appreciate the spirit and liberty upon which these provisions are based.[50]
WHEREFORE, the petition is GRANTED. The assailed provisos in the General Appropriations Acts of 1999, 2000 and 2001,
and the assailed OCD Resolutions, are declared UNCONSTITUTIONAL.
SO ORDERED.
G.R. No. L-59524 February 18, 1985
JOVITO R. SALONGA, petitioner,
vs.
HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE
RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO
APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.
GUTIERREZ, JR., J.:
The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause,
alleging that no prima facie case has been established to warrant the filing of an information for subversion against him.
Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress,
and persecute him, a member of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On
September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost
killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the
YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken
sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los
Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group
pictures together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical
Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all
direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr.
Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives,
and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an
American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of
persons.
On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger
brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had
driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20,
1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence
and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor
only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day
to pick up his brother.
The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to
the various bombings in Metro Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the
office of Col. Madella where he was held incommunicado for some time.
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On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila,
namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the
General Military Council was called for October 6, 1980.
On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference
of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded.
Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were
apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner.
Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal
everything he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center
where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The
arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him.
For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of
Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's
right to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room
without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why
he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and
placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" in People
v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of
the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10)
days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The
petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary,
he has not received any copies of the charges against him nor any copies of the so-called supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of
Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated
Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised
Penal Code. The inquest court set the preliminary investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo
comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left
eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a
Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner
was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of
shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is
completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in
the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad.
On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen.
Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A.
1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were
conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the
Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the
Presidential Security Command and Victor Lovely himself.
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On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the
prosecution to establish a prima facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the
filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including
herein petitioner.
The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the
petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify
the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence
against him would be to admit that no rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to
establish a prima facie case against the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being
interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary
course of law; and that public interest dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions
when a petition for certiorari is clearly warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit:
xxx xxx xxx
... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the
remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse
being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse
judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v.
People, et al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that,
under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question
the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was
so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969."
Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's
right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution.
The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons
when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga,
himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center
while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him.
Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his
lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four
months of detention was the petitioner informed for the first time of the nature of the charges against him. After the
preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the
respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been
established against an of the forty persons accused.
218
In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime,
the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against
him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now
deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof
beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in
the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to
the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason
to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not
infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an
American federal grand jury how could he possibly be made to testify when the charges against the respondent come up
in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve
at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned
resolutions.
The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by
then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of
this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the
proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a
conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they
were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence
and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of
Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive
organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the
Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other
hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely
"that it was the residence of ex-Senator Salonga where they met together with Renato Taada, one of the brains of the
bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the
U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul
Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the
Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were
referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the
court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer,
officer or a member, the witness replied:
A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor,
please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted
always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of
operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)
Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie
evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence,
whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts
stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely,
himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest
judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently
implicated petitioner in the bombings which eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement
made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not
presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and
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Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was
examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made
before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court
that it was adopting Lovely as a prosecution witness.
According to Lovely's statement, the following events took place:
36. Q. Did Psinakis tell you where to stay?
A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact
me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him.
Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and
someone will meet me there to give the materials I needed to accomplish my mission
37. Q. Did you comply as instructed?
A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my
business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at
Concepcion Street, Manila.
38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis?
A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of
August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I
told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga
replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll
just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of
August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for
the appointment. I arrived at Salonga's place at exactly 4 P.M.
39. Q. What happened then?
A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga
informed me that somebody will be coming to give me the attache case but did not tell me the name.
40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials?
A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that
meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of
Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul
Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed.
41. Q. How long did you wait until that somebody arrived?
A. About thirty (30) minutes.
41. Q. What happened when the man arrived?
A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him
and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones
so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty.
"Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse."
43. Q. Were the materials given to you?
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A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac
car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a
"Puma" bag containing all the materials I needed.
xxx xxx xxx
45. Q. What were the contents of the Puma bag?
A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4"
length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised
electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which
was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as
the petitioner's participation was concerned:
xxx xxx xxx
Q. Who were the people that you contacted in Manila and for what purpose?
A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and
somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that
is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga.
And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call
again. I was able to contact him. I made an appointment t see him. I went to Sen. Salonga's house the following day. I
asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to
Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the
31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near
me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These
materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the
latter mentioned in his sworn statement:
Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called
destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also
present, was this destabilization plan as alleged by you already formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Mr. Witness, who invited you to the party?
A. Raul Daza, your Honor.
Q. Were you told that Mr. Salonga would be present in the party.
A. I am really not quite sure, your Honor.
Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result
of the party?
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A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).
Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner,
he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating
any ground. In sustaining the objection, the Court said:
Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the
avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least,
as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact
point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness.
That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)
Respondent judge further said:
COURT:
As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then
the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United
States is concerned. I don't know why it concerns this cross-examination.
ATTY. YAP:
Because according to him, it was in pursuance of the plan that he came to Manila.
COURT:
According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when
he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United
States. It seems to be the thrust of the questions.
COURT:
In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from
the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no
mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up
although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga.
(TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged
"participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between
Lovely and Taada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities"
of petitioner in the United States as his basis for denying the motion to dismiss:
On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of
my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not
instituted by President Marcos immediately.
It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that
excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on
foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the
Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve
its end. It appears to rely on aliens for its supporters and financiers.
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The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is
not only inexplicable but without foundation.
The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or
terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader
of subversive organizations for two reasons-
(1) Because his house was used as a "contactpoint"; and
(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not
instituted by President Marcos immediately."
The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a
basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply
because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a
dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal
prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato
Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have
met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States
only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He
states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga
was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he
has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct.
Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important
visitors and the picture proves nothing.
It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and
visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a
group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby
become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is
necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations
and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any
proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint.
Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been
attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore,
the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not
instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and
expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice
Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution
that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those
who agree with us but freedom for the thought that we hate."
We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level
than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a
fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained
by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political
and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when
allegations are made that restraints have been imposed upon mere criticisms of government and public officials.
Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments.
223
The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of
the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group
for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished
between criminal threats and constitutionally protected speech.
It stated:
We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we
must interpret the language Congress chose against the background of a profound national commitment to the principle
that debate 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. New York Times Co. v. Sullivan
(376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive,
and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a
political opposition to the President.
In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force
or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the
likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the
uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech.
Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce
such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years
away from such type of proscribed advocacy.
Political discussion even among those opposed to the present administration is within the protective clause of freedom
of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in
a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only
constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to:
(6) Conferring with officers or other members of such association or organization in furtherance of any plan or
enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and
any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at
Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to
overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are
instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a
subversive organization.
Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing
incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980.
(See TSN, pp. 63-63, July 8, 1981). He further testified that:
WITNESS:
Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed
against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have
been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer
charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and
petitioner:
COURT:
224
Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga?
A. No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a
prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness
stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to
implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly
establish the link between the petitioner and the bombing incidents.
The respondent court should have taken these factors into consideration before concluding that a prima facie case exists
against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in
itself such as the common experience and observation of mankind can approve as probable under the circumstances.
(People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the
petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations
about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such
credibility by the respondent judge as if they had already been proved beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial,
and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan,
71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress
constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it
is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not
escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part
of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative
upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is
ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of
probable cause since the same must be decided in the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding
should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste,
S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that
some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating
constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116
SCRA 93).
The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft
ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge
Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the
petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek
the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution.
We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from
circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further
deliberations.
Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has
been rendered moot and academic by the action of the prosecution.
225
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the
same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is
not completely academic.
Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's
functions.
The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of
Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not
enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It
has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and,
therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became
moot because of his escape but we nonetheless rendered a decision and stated:
The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and
unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the
Constitution that excessive bail shall not be required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created
through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the
President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the
preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the
Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were
released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder,
subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this
Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in
the Reports.
In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a
prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government
or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against
the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the
kind of evidence against the petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and academic.
SO ORDERED.
226
GR No. L-35474, Mar 29, 1982 HONORATO C. PEREZ v. PROVINCIAL BOARD OF NUEVA ECIJA
This is an original action for certiorari, prohibition and mandamus to annul Resolution No. 228 of the respondent
Provincial Board of Nueva Ecija, dated August 21, 1972; to enjoin respondents from enforcing and implementing said
Resolution; and to compel res-pondents to recognize petitioner Honorato Perez as acting provincial fiscal of Nueva Ecija.
The factual antecedents which gave rise to this petition are not disputed. When former provincial fiscal of Nueva Ecija,
Celestino Juan was appointed judge of the Court of First Instance of Quezon, the Secretary of Justice, in Administrative
Order No. 388, dated September 9, 1971, designated first assistant fiscal Emilio Cecilio of Nueva Ecija as acting provincial
fiscal.[1]
On May 10, 1972, President Ferdinand Marcos nominated petitioner Honorato Perez for appointment to the position of
Provincial Fiscal of Nueva Ecija.[2] It appears, however, that the nomination which was submitted to the Commission on
Appointments for confirmation was by-passed upon adjournment sine die of Congress on May 18, 1972. On the
following day, May 19, President Marcos designated petitioner as acting provincial fiscal.[3]
Reacting to the said designation, respondent Provincial Board enacted Resolution No. 146 addressed to the Commission
on Appointments, manifesting its opposition to the confirmation of petitioner's appointment.[4] Respondent Governor
Joson also filed a formal protest with the Committee on Justice of the Commission on Appointments, making known his
strong and emphatic opposition to the confirmation.[5] After submission of the evidence in support of the opposition,
the said Committee resolved not to recommend the confirmation of petitioner's appointment.[6]
On June 7, 1972, or during the sixth special session of Congress, petitioner was nominated anew for appointment to the
office in question;[7] but the same was likewise by-passed upon adjournment of Congress on June 22, 1972.[8]
On August 11, 1972, petitioner took his oath of office as acting provincial fiscal[9] pursuant to the designation extended
by the President on May 19, 1972; and on August 14, 1972, he formally assumed office.[10]
On August 21, 1972, respondent Provincial Board passed Resolution No. 228, ordering respondent Provincial Treasurer
to stop payment of petitioner's salaries as acting provincial fiscal.[11]
The dispute came to a head on August 28, 1972, when respondent treasurer disapproved petitioner's requisition for
various office supplies. His salary vouchers were likewise disapproved by the respondent Governor.
Hence, the instant petition, petitioner raising the following legal questions:
"1) Whether or not respondent Provincial Board has the power to pass and enact a resolution not recognizing herein
petitioner as acting provincial fiscal despite the fact that the latter has assumed such office pursuant to a designation
lawfully extended to him by the President of the Philippines.
"2) Whether or not respondent Provincial Board has the power to defy and/or pass judgment on the validity of the said
designation and assumption."
We deem it unnecessary to pass upon the issues raised, this petition having become moot and academic. We take
cognizance of the fact that petitioner Perez filed his certificate of candidacy for the office of mayor of Cabanatuan City in
the local elections of January 30, 1980.[12] The mere filing of a certificate of candidacy constitutes forfeiture of his right
to the controverted office under Section 29 of the Election Code of 1978 which provides:
"SEC. 29. Candidates holding appointive office or position.-Every person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or
controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy.
Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of
candidacy, subject to the pleasure of the President of the Philippines." (Underscoring supplied).
A petition instituted to establish petitioner's right to an appointive office is rendered moot and academic where his right
to said office has been for-feited by his filing of a certificate of candidacy to an elective office.
ACCORDINGLY, this petition is hereby dismissed. No costs.
SO ORDERED.
227
[G.R. No. 152295. July 9, 2002]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY SITUATED, petitioners, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF BUDGET AND MANAGEMENT, EXECUTIVE
SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR FRANKLIN DRILON in his capacity as Senate President and
SENATOR AQUILINO PIMENTEL in his capacity as Minority Leader of the Senate of the Philippines, CONGRESSMAN JOSE
DE VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L. SYJOCO in his capacity as Chairman of the Committee
on Suffrage and Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II in his capacity as Chairman of the
Committee on Local Government of the House of Representatives, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN
NG MGA SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS AND REPRESENTATIVES, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order or
preliminary injunction. The petition seeks to prevent the postponement of the Sangguniang Kabataan (SK for brevity)
elections originally scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age requirement
for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit, on their own behalf and on behalf of
other youths similarly situated. Petitioners claim that they are in danger of being disqualified to vote and be voted for in
the SK elections should the SK elections on May 6, 2002 be postponed to a later date. Under the Local Government Code
of 1991 (R.A. No. 7160), membership in the SK is limited to youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents connived, confederated and conspired to postpone the May 6, 2002 SK
elections and to lower the membership age in the SK to at least 15 but less than 18 years of age. Petitioners assail the
alleged conspiracy because youths at least 18 but not more than 21 years old will be summarily and unduly
dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly disassociated and obnoxiously disqualified
from the SK organization.[1]
Thus, petitioners pray for the issuance of a temporary restraining order or preliminary injunction -
a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other respondents
issuances, orders and actions and the like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set by the present law and in accordance with
Comelec Resolutions No. 4713 and 4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason, there must be a definite date for said
elections, for example, July 15, 2002, and the present SK membership, except those incumbent SK officers who were
elected on May 6, 1996, shall be allowed to run for any SK elective position even if they are more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK in every sanggunian and the NYC to vacate
their post after the barangay elections.[2]
The Facts
The SK is a youth organization originally established by Presidential Decree No. 684 as the Kabataang Barangay (KB for
brevity). The KB was composed of all barangay residents who were less than 18 years old, without specifying the
minimum age. The KB was organized to provide its members with the opportunity to express their views and opinions on
issues of transcendental importance.[3]
The Local Government Code of 1991 renamed the KB to SK and limited SK membership to those youths at least 15 but
not more than 21 years of age.[4] The SK remains as a youth organization in every barangay tasked to initiate programs
228
to enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the
youth.[5] The SK in every barangay is composed of a chairperson and seven members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every barangay is composed of all citizens actually residing in the barangay for
at least six months and who meet the membership age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK elections to the first Monday of May of
1996 and every three years thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the SK elections
under rules the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued Resolution Nos.
4713[6] and 4714[7] to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for brevity) sent a letter[8] to the
Comelec, demanding that the SK elections be held as scheduled on May 6, 2002. Montesclaros also urged the Comelec
to respond to her letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then Comelec Chairman, wrote identical
letters to the Speaker of the House[9] and the Senate President[10] about the status of pending bills on the SK and
Barangay elections. In his letters, the Comelec Chairman intimated that it was operationally very difficult to hold both
elections simultaneously in May 2002. Instead, the Comelec Chairman expressed support for the bill of Senator Franklin
Drilon that proposed to hold the Barangay elections in May 2002 and postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners received a
copy of Comelec En Banc Resolution No. 4763[11] dated February 5, 2002 recommending to Congress the
postponement of the SK elections to November 2002 but holding the Barangay elections in May 2002 as scheduled.[12]
On March 6, 2002, the Senate and the House of Representatives passed their respective bills postponing the SK
elections. On March 11, 2002, the Bicameral Conference Committee (Bicameral Committee for brevity) of the Senate
and the House came out with a Report[13] recommending approval of the reconciled bill consolidating Senate Bill No.
2050[14] and House Bill No. 4456.[15] The Bicameral Committees consolidated bill reset the SK and Barangay elections
to July 15, 2002 and lowered the membership age in the SK to at least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill and on March 13, 2002, the House
of Representatives approved the same. The President signed the approved bill into law on March 19, 2002.
The Issues
Petitioners[16] raise the following grounds in support of their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY INTENDED TO POSTPONE THE
SK ELECTIONS.
II.
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS[17] (SIC) THAN 21 YEARS
OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND
229
THE SK ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME AND
MACHINATION IN SPITE OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES CONTRARY TO THE
ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF LAW AND CONSTITUTION.[18]
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have transpired since petitioners filed this
petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held as scheduled.
2. Congress enacted RA No. 9164[19] which provides that voters and candidates for the SK elections must be at least 15
but less than 18 years of age on the day of the election.[20] RA No. 9164 also provides that there shall be a synchronized
SK and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the conduct of the July 15, 2002
synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the May 6, 2002 SK elections
disenfranchises them, preventing them from voting and being voted for in the SK elections. Petitioners theory is that if
the SK elections were postponed to a date later than May 6, 2002, the postponement would disqualify from SK
membership youths who will turn 21 years old between May 6, 2002 and the date of the new SK elections. Petitioners
claim that a reduction in the SK membership age to 15 but less than 18 years of age from the then membership age of
15 but not more than 21 years of age would disqualify about seven million youths. The public respondents failure to
hold the elections on May 6, 2002 would prejudice petitioners and other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002 and
should it be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public respondents from
passing laws and issuing resolutions and orders that would lower the membership age in the SK; and (3) compel public
respondents to allow petitioners and those who have turned more than 21 years old on May 6, 2002 to participate in
any re-scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases only if all the following requisites are
complied with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is the lis mota of the case.[21]
In the instant case, there is no actual controversy requiring the exercise of the power of judicial review. While seeking to
prevent a postponement of the May 6, 2002 SK elections, petitioners are nevertheless amenable to a resetting of the SK
elections to any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15, 2002, a date
acceptable to petitioners. With respect to the date of the SK elections, there is therefore no actual controversy requiring
judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK
does not present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law.
A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal
effect, violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of Congress.
The power of judicial review cannot be exercised in vacuo.[22] The second paragraph of Section 1, Article VIII of the
Constitution states
230
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)
Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its
power of judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion
the legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative
powers are not subject to judicial restraint: the filing of bills by members of Congress, the approval of bills by each
chamber of Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual approval into
law of the reconciled bills by each chamber of Congress. Absent a clear violation of specific constitutional limitations or
of constitutional rights of private parties, the Court cannot exercise its power of judicial review over the internal
processes or procedures of Congress.[23]
The Court has also no power to dictate to Congress the object or subject of bills that Congress should enact into law. The
judicial power to review the constitutionality of laws does not include the power to prescribe to Congress what laws to
enact. The Court has no power to compel Congress by mandamus to enact a law allowing petitioners, regardless of their
age, to vote and be voted for in the July 15, 2002 SK elections. To do so would destroy the delicate system of checks and
balances finely crafted by the Constitution for the three co-equal, coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter of the SK, which
fixed the maximum age for membership in the SK to youths less than 18 years old. Petitioners do not have a vested right
to the permanence of the age requirement under Section 424 of the Local Government Code of 1991. Every law passed
by Congress is always subject to amendment or repeal by Congress. The Court cannot restrain Congress from amending
or repealing laws, for the power to make laws includes the power to change the laws.[24]
The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an election that is limited
under RA No. 9164 to youths at least 15 but less than 18 years old. A law is needed to allow all those who have turned
more than 21 years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths from 18 to 21
years old as of May 6, 2002 are also no longer SK members, and cannot participate in the July 15, 2002 SK elections.
Congress will have to decide whether to enact an amendatory law. Petitioners remedy is legislation, not judicial
intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he has been, or is
about to be denied some personal right or privilege to which he is lawfully entitled.[25] A party must also show that he
has a real interest in the suit. By real interest is meant a present substantial interest, as distinguished from a mere
expectancy or future, contingent, subordinate, or inconsequential interest.[26]
In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at least 15 but not
more than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those who on the date of the SK
elections are at least 15 but less than 18 years old. The new law restricts membership in the SK to this specific age group.
Not falling within this classification, petitioners have ceased to be members of the SK and are no longer qualified to
participate in the July 15, 2002 SK elections. Plainly, petitioners no longer have a personal and substantial interest in the
SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No. 9164, which reset
the SK elections and reduced the age requirement for SK membership, was not yet enacted into law. After the passage
of RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional. To grant
petitioners prayer to be allowed to vote and be voted for in the July 15, 2002 SK elections necessitates assailing the
constitutionality of RA No. 9164. This, petitioners have not done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action and adequately argued.[27]
The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is their claim that SK membership is
a property right within the meaning of the Constitution.[28] Since certain public offices are reserved for SK officers,
231
petitioners also claim a constitutionally protected opportunity to occupy these public offices. In petitioners own words,
they and others similarly situated stand to lose their opportunity to work in the government positions reserved for SK
members or officers.[29] Under the Local Government Code of 1991, the president of the federation of SK organizations
in a municipality, city or province is an ex-officio member of the municipal council, city council or provincial board,
respectively.[30] The chairperson of the SK in the barangay is an ex-officio member of the Sangguniang Barangay.[31]
The president of the national federation of SK organizations is an ex-officio member of the National Youth Commission,
with rank of a Department Assistant Secretary.[32]
Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer qualified because
of an amendment in the law cannot complain of being deprived of a proprietary right to SK membership. Only those who
qualify as SK members can contest, based on a statutory right, any act disqualifying them from SK membership or from
voting in the SK elections. SK membership is not a property right protected by the Constitution because it is a mere
statutory right conferred by law. Congress may amend at any time the law to change or even withdraw the statutory
right.
A public office is not a property right. As the Constitution expressly states, a [P]ublic office is a public trust.[33] No one
has a vested right to any public office, much less a vested right to an expectancy of holding a public office. In Cornejo v.
Gabriel,[34] decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office a
property. It is, however, well settled x x x that a public office is not property within the sense of the constitutional
guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the government x x x is that of a
popular representative government, the officers being mere agents and not rulers of the people, one where no one man
or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the
provisions of the law and holds the office as a trust for the people he represents. (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a proprietary
right to public office. While the law makes an SK officer an ex-officio member of a local government legislative council,
the law does not confer on petitioners a proprietary right or even a proprietary expectancy to sit in local legislative
councils. The constitutional principle of a public office as a public trust precludes any proprietary claim to public office.
Even the State policy directing equal access to opportunities for public service[35] cannot bestow on petitioners a
proprietary right to SK membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youths involvement in public affairs,[36] this policy refers to those
who belong to the class of people defined as the youth. Congress has the power to define who are the youth qualified to
join the SK, which itself is a creation of Congress. Those who do not qualify because they are past the age group defined
as the youth cannot insist on being part of the youth. In government service, once an employee reaches mandatory
retirement age, he cannot invoke any property right to cling to his office. In the same manner, since petitioners are now
past the maximum age for membership in the SK, they cannot invoke any property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the postponement of the SK elections. RA No.
9164 is now the law that prescribes the qualifications of candidates and voters for the SK elections. This law also fixes
the date of the SK elections. Petitioners are not even assailing the constitutionality of RA No. 9164. RA No. 9164 enjoys
the presumption of constitutionality and will apply to the July 15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in recommending to
Congress the postponement of the SK elections. The very evidence relied upon by petitioners contradict their allegation
of illegality. The evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated February 5, 2002 that
recommended the postponement of the SK elections to 2003; (2) the letter of then Comelec Chairman Benipayo
addressed to the Speaker of the House of Representatives and the President of the Senate; and (3) the Conference
Committee Report consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum and recall[37] and to recommend to Congress effective measures to
minimize election spending.[38] The Comelecs acts enjoy the presumption of regularity in the performance of official
duties.[39] These acts cannot constitute proof, as claimed by petitioners, that there exists a connivance and conspiracy
232
(among) respondents in contravention of the present law. As the Court held in Pangkat Laguna v. Comelec,[40] the
Comelec, as the government agency tasked with the enforcement and administration of elections laws, is entitled to the
presumption of regularity of official acts with respect to the elections.
The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and regulations
relative to the conduct of elections. Petitioners failed to prove that the Comelec committed grave abuse of discretion in
recommending to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by petitioners even
establish that the Comelec has demonstrated an earnest effort to address the practical problems in holding the SK
elections on May 6, 2002. The presumption remains that the decision of the Comelec to recommend to Congress the
postponement of the elections was made in good faith in the regular course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law.[41] Public respondents having acted
strictly pursuant to their constitutional powers and duties, we find no grave abuse of discretion in their assailed acts.
Petitioners contend that the postponement of the SK elections would allow the incumbent SK officers to perpetuate
themselves in power, depriving other youths of the opportunity to serve in elective SK positions. This argument deserves
scant consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can remain in office only
until their successors have been elected or qualified. On July 15, 2002, when the SK elections are held, the hold-over
period expires and all incumbent SK officials automatically cease to hold their SK offices and their ex-officio public
offices.
In sum, petitioners have no personal and substantial interest in maintaining this suit. This petition presents no actual
justiciable controversy. Petitioners do not cite any provision of law that is alleged to be unconstitutional. Lastly, we find
no grave abuse of discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.
G.R. No. L-119694 May 22, 1995
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented by its President, Amado P. Macasaet
and its Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional validity of Resolution No. 2772
issued by respondent Commission on Elections ("Comelec") and its corresponding Comelec directive dated 22 March
1995, through a Petition for Certiorari and Prohibition. Petitioner PPI is a non-stock, non-profit organization of
newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. The Commission shall procure free print space of not less than one half (1/2) page in at least
one newspaper of general circulation in every province or city for use as "Comelec Space" from March 6, 1995 in the
233
case of candidates for senator and from March 21, 1995 until May 12, 1995. In the absence of said newspaper, "Comelec
Space" shall be obtained from any magazine or periodical of said province or city.
Sec. 3. Uses of Comelec Space. "Comelec Space" shall be allocated by the Commission, free of charge, among all
candidates within the area in which the newspaper, magazine or periodical is circulated to enable the candidates to
make known their qualifications, their stand on public issues and their platforms and programs of government.
"Comelec Space" shall also be used by the Commission for dissemination of vital election information.
Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also be available to all candidates during the periods
stated in Section 2 hereof. Its allocation shall be equal and impartial among all candidates for the same office. All
candidates concerned shall be furnished a copy of the allocation of "Comelec Space" for their information, guidance and
compliance.
(b) Any candidate desiring to avail himself of "Comelec Space" from newspapers or publications based in the
Metropolitan Manila Area shall submit an application therefor, in writing, to the Committee on Mass Media of the
Commission. Any candidate desiring to avail himself of "Comelec Space" in newspapers or publications based in the
provinces shall submit his application therefor, in writing, to the Provincial Election Supervisor concerned. Applications
for availment of "Comelec Space" maybe filed at any time from the date of effectivity of this Resolution.
(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available "Comelec Space"
among the candidates concerned by lottery of which said candidates shall be notified in advance, in writing, to be
present personally or by representative to witness the lottery at the date, time and place specified in the notice. Any
party objecting to the result of the lottery may appeal to the Commission.
(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election
Supervisor, as the case maybe, sufficiently in advance and in writing of the date of issue and the newspaper or
publication allocated to him, and the time within which he must submit the written material for publication in the
"Comelec Space".
xxx xxx xxx
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. No newspaper or publication shall allow to
be printed or published in the news, opinion, features, or other sections of the newspaper or publication accounts or
comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the facts and circumstances clearly indicate
otherwise, the Commission will respect the determination by the publisher and/or editors of the newspapers or
publications that the accounts or views published are significant, newsworthy and of public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec through Commissioner Regalado E. Maambong sent identical
letters, dated 22 March 1995, to various publishers of newspapers like the Business World, the Philippine Star, the
Malaya and the Philippine Times Journal, all members of PPI. These letters read as follows:
This is to advise you that pursuant to Resolution No. 2772 of the Commission on Elections, you are directed to provide
free print space of not less than one half (1/2) page for use as "Comelec Space" or similar to the print support which you
have extended during the May 11, 1992 synchronized elections which was 2 full pages for each political party fielding
senatorial candidates, from March 6, 1995 to May 6, 1995, to make known their qualifications, their stand on public
issues and their platforms and programs of government.
We shall be informing the political parties and candidates to submit directly to you their pictures, biographical data,
stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready
materials.
Please be reminded that the political parties/candidates may be accommodated in your publication any day upon
receipt of their materials until May 6, 1995 which is the last day for campaigning.
234
We trust you to extend your full support and cooperation in this regard. (Emphasis supplied)
In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary Restraining Order, PPI asks us
to declare Comelec Resolution No. 2772 unconstitutional and void on the ground that it violates the prohibition imposed
by the Constitution upon the government, and any of its agencies, against the taking of private property for public use
without just compensation. Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring
publishers to give free "Comelec Space" and at the same time process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the 1987 Constitution.
Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of the constitutionally guaranteed freedom
of speech, of the press and of expression. 1
On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing
Section 2 of Resolution No. 2772, as well as the Comelec directives addressed to various print media enterprises all
dated 22 March 1995. The Court also required the respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution
No. 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does
not provide any criminal or administrative sanction for non-compliance with that Resolution. According to the Solicitor
General, the questioned Resolution merely established guidelines to be followed in connection with the procurement of
"Comelec space," the procedure for and mode of allocation of such space to candidates and the conditions or
requirements for the candidate's utilization of the "Comelec space" procured. At the same time, however, the Solicitor
General argues that even if the questioned Resolution and its implementing letter directives are viewed as mandatory,
the same would nevertheless be valid as an exercise of the police power of the State. The Solicitor General also
maintains that Section 8 of Resolution No. 2772 is a permissible exercise of the power of supervision or regulation of the
Comelec over the communication and information operations of print media enterprises during the election period to
safeguard and ensure a fair, impartial and credible election. 2
At the oral hearing of this case held on 28 April 1995, respondent Comelec through its Chairman, Hon. Bernardo Pardo,
in response to inquiries from the Chief Justice and other Members of the Court, stated that Resolution No. 2772,
particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI, were not
intended to compel those members to supply Comelec with free print space. Chairman Pardo represented to the Court
that Resolution and the related letter-directives were merely designed to solicit from the publishers the same free print
space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992
elections. Indeed, the Chairman stated that the Comelec would, that very afternoon, meet and adopt an appropriate
amending or clarifying resolution, a certified true copy of which would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation which attached a copy of
Comelec Resolution No. 2772-A dated 4 May 1995. The operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the Constitution, the Omnibus Election Code, Republic Acts No.
6646 and 7166 and other election laws, the Commission on Elections RESOLVED to clarify Sections 2 and 8 of Res. No.
2772 as follows:
1. Section 2 of Res. No. 2772 shall not be construed to mean as requiring publishers of the different mass media
print publications to provide print space under pain of prosecution, whether administrative, civil or criminal, there being
no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code, on the grant of "Comelec space."
2. Section 8 of Res. No. 2772 shall not be construed to mean as constituting prior restraint on the part of
publishers with respect to the printing or publication of materials in the news, opinion, features or other sections of
their respective publications or other accounts or comments, it being clear from the last sentence of said Section 8 that
the Commission shall, "unless the facts and circumstances clearly indicate otherwise . . . respect the determination by
the publisher and/or editors of the newspapers or publications that the accounts or views published are significant,
newsworthy and of public interest."
This Resolution shall take effect upon approval. (Emphasis in the original)
235
While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and Prohibition as having become
moot and academic, we consider it not inappropriate to pass upon the first constitutional issue raised in this case. Our
hope is to put this issue to rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of Resolution No. 2772-A did not try to
redraft Section 2; accordingly, Section 2 of Resolution No. 2772 persists in its original form. Thus, we must point out
that, as presently worded, and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-
directives to newspaper publishers, Section 2 of Resolution No. 2772 is clearly susceptible of the reading that petitioner
PPI has given it. That Resolution No. 2772 does not, in express terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction, does not by itself demonstrate that the Comelec's original
intention was simply to solicit or request voluntary donations of print space from publishers. A written communication
officially directing a print media company to supply free print space, dispatched by a government (here a constitutional)
agency and signed by a member of the Commission presumably legally authorized to do so, is bound to produce a
coercive effect upon the company so addressed. That the agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such directions, only aggravates the constitutional difficulties
inhearing in the present situation. The enactment or addition of such sanctions by the legislative authority itself would
be open to serious constitutional objection.
To compel print media companies to donate "Comelec-space" of the dimensions specified in Section 2 of Resolution No.
2772 (not less than one-half page), amounts to "taking" of private personal property for public use or purposes. Section
2 failed to specify the intended frequency of such compulsory "donation:" only once during the period from 6 March
1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the
same period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary
limitation or restraint upon the use of private property. The monetary value of the compulsory "donation," measured by
the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas, may be very
substantial indeed.
The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private
personal property for public use. The threshold requisites for a lawful taking of private property for public use need to
be examined here: one is the necessity for the taking; another is the legal authority to effect the taking. The element of
necessity for the taking has not been shown by respondent Comelec. It has not been suggested that the members of PPI
are unwilling to sell print space at their normal rates to Comelec for election purposes. Indeed, the unwillingness or
reluctance of Comelec to buy print space lies at the heart of the problem. 3 Similarly, it has not been suggested, let
alone demonstrated, that Comelec has been granted the power of eminent domain either by the Constitution or by the
legislative authority. A reasonable relationship between that power and the enforcement and administration of election
laws by Comelec must be shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not contested by petitioner PPI. We note only that, under Section
3 of Resolution No. 2772, the free "Comelec space" sought by the respondent Commission would be used not only for
informing the public about the identities, qualifications and programs of government of candidates for elective office
but also for "dissemination of vital election information" (including, presumably, circulars, regulations, notices,
directives, etc. issued by Comelec). It seems to the Court a matter of judicial notice that government offices and
agencies (including the Supreme Court) simply purchase print space, in the ordinary course of events, when their rules
and regulations, circulars, notices and so forth need officially to be brought to the attention of the general public.
The taking of private property for public use is, of course, authorized by the Constitution, but not without payment of
"just compensation" (Article III, Section 9). And apparently the necessity of paying compensation for "Comelec space" is
precisely what is sought to be avoided by respondent Commission, whether Section 2 of Resolution No. 2772 is read as
petitioner PPI reads it, as an assertion of authority to require newspaper publishers to "donate" free print space for
Comelec purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as Section 1 of
Resolution No. 2772-A attempts to suggest. There is nothing at all to prevent newspaper and magazine publishers from
voluntarily giving free print space to Comelec for the purposes contemplated in Resolution No. 2772. Section 2 of
Resolution No. 2772 does not, however, provide a constitutional basis for compelling publishers, against their will, in the
kind of factual context here present, to provide free print space for Comelec purposes. Section 2 does not constitute a
valid exercise of the power of eminent domain.
236
We would note that the ruling here laid down by the Court is entirely in line with the theory of democratic
representative government. The economic costs of informing the general public about the qualifications and programs
of those seeking elective office are most appropriately distributed as widely as possible throughout our society by the
utilization of public funds, especially funds raised by taxation, rather than cast solely on one small sector of society, i.e.,
print media enterprises. The benefits which flow from a heightened level of information on and the awareness of the
electoral process are commonly thought to be community-wide; the burdens should be allocated on the same basis.
As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if read as compelling
publishers to "donate" "Comelec space, " may be sustained as a valid exercise of the police power of the state. This
argument was, however, made too casually to require prolonged consideration on our part. Firstly, there was no effort
(and apparently no inclination on the part of Comelec) to show that the police power essentially a power of
legislation has been constitutionally delegated to respondent Commission. 4 Secondly, while private property may
indeed be validly taken in the legitimate exercise of the police power of the state, there was no attempt to show
compliance in the instant case with the requisites of a lawful taking under the police power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of existence of a
national emergency or other imperious public necessity, indiscriminately and without regard to the individual business
condition of particular newspapers or magazines located in differing parts of the country, to take private property of
newspaper or magazine publishers. No attempt was made to demonstrate that a real and palpable or urgent necessity
for the taking of print space confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only
reasonable and calibrated response to such necessity available to the Comelec. Section 2 does not constitute a valid
exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. No newspaper or publication shall allow to
be printed or published in the news, opinion, features, or other sections of the newspaper or publication accounts or
comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the facts and circumstances clearly indicate
otherwise, the Commission will respect the determination by the publisher and/or editors of the newspapers or
publications that the accounts or views published are significant, newsworthy and of public interest.
It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any case, Section 8 should be
viewed in the context of our decision in National Press Club v. Commission on Elections. 6 There the Court sustained the
constitutionality of Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987, which prohibits the sale
or donation of print space and airtime for campaign or other political purposes, except to the Comelec. In doing so, the
Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b),
from (b) the reporting of news, commentaries and expressions of belief or opinion by reporters, broadcasters, editors,
commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional
guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that
it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, of print space
and air time for campaign or other political purposes. Section 11 (b) does not purport in any way to restrict the reporting
by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications,
political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions
of belief or opinion by reporters or broadcaster or editors or commentators or columnists in respect of candidates, their
qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report
or commentary or other coverage that, in responsible media, is not paid for by candidates for political office. We read
Section 11 (b) as designed to cover only paid political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) that it does not restrict either the reporting of or the
expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates
237
for office constitutes the critical distinction which must be made between the instant case and that of Sanidad v.
Commission on Elections. . . . 7 (Citations omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish a guideline for
implementation of the above-quoted distinction and doctrine in National Press Club an effort not blessed with evident
success. Section 2 of Resolution No. 2772-A while possibly helpful, does not add substantially to the utility of Section 8 of
Resolution No. 2772. The distinction between paid political advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can
realistically be given operative meaning only in actual cases or controversies, on a case-to-case basis, in terms of very
specific sets of facts.
At all events, the Court is bound to note that PPI has failed to allege any specific affirmative action on the part of
Comelec designed to enforce or implement Section 8. PPI has not claimed that it or any of its members has sustained
actual or imminent injury by reason of Comelec action under Section 8. Put a little differently, the Court considers that
the precise constitutional issue here sought to be raised whether or not Section 8 of Resolution No. 2772 constitutes
a permissible exercise of the Comelec's power under Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of media of
communication or information [for the purpose of ensuring] equal opportunity, time and space, and the right of
reply, including reasonable, equal rates therefore, for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly honest, peaceful and credible elections
is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis mota thereof, the
constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its 22 March 1995 letter
directives, purports to require print media enterprises to "donate" free print space to Comelec. As such, Section 2
suffers from a fatal constitutional vice and must be set aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and Prohibition must be
dismissed for lack of an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in part and Section 2 of
Resolution No. 2772 in its present form and the related letter-directives dated 22 March 1995 are hereby SET ASIDE as
null and void, and the Temporary Restraining Order is hereby MADE PERMANENT. The Petition is DISMISSED in part, to
the extent it relates to Section 8 of Resolution No. 2772. No pronouncement as to costs.
BOARD OF OPTOMETRY, represented by its Chairman, DR. PRIMITIVA Y. PEREZ-SISON, PROFESSIONAL REGULATION
COMMISSION, represented by its Commissioner, HERMOGENES P. POBRE, DEPARTMENT OF HEALTH, represented by its
Secretary, DR. HILARION M. RAMIRO, BUREAU OF FOODS AND DRUGS, represented by its Director, DR. QUINTIN L.
KINTANAR, DEPARTMENT OF BUDGET AND MANAGEMENT, represented by its Secretary, SALVADOR M. ENRIQUEZ, JR.,
and BUREAU OF HIGHER EDUCATION, represented by its Director, MONA D. VALISNO, petitioners, vs. HON. ANGEL B.
COLET, Presiding Judge, Regional Trial Court of Manila, Branch 29, ACEBEDO OPTICAL COMPANY, INC., represented by its
President and Chairman of the Board, MIGUEL P. ACEBEDO, OPTOMETRY PRACTITIONERS ASSOCIATION OF THE
PHILIPPINES (OPAP), represented by its President, DR. MIRIAM F. LLAVE, CENEVIS OPTOMETRIST ASSOCIATION (COA),
represented by its President, DR. ROBERTO RODIS, JR., ASSOCIATION OF CHRISTIAN-MUSLIM OPTOMETRIST (ACMO),
represented by its President, DR. CYRIL CORALES, SOUTHERN MINDANAO OPTOMETRIST ASSOCIATION OF THE PHILS.,
INC. (SMOAP), represented by its President, DR. ELMER VILLAROSA, and REPUBLICA A. PANOL, No. 9 Gen. Malvar St.,
Araneta Center, Cubao, Quezon City, respondents.
DECISION
DAVIDE, JR., J.:
238
Petitioners seek to annul and set aside for having been rendered with grave abuse of discretion the order of 25 August
1995 issued by public respondent Judge Angel V. Colet in Civil Case No. 95-74770 which granted a writ of preliminary
injunction restraining, enjoining, and prohibiting the petitioners herein from undertaking in any form or manner, the
enforcement or implementation of the Revised Optometry Law [R.A. No. 8050] or any regulations or Code of Ethics
issued thereunder.
The background facts are not disputed.
R.A. No. 8050,[1] entitled An Act Regulating the Practice of Optometry Education, Integrating Optometrists, and for
Other Purposes, otherwise known as the Revised Optometry Law of 1995, was a consolidation of House Bill (HB) No.
14100[2] and Senate Bill (SB) No. 1998,[3] which were respectively approved by both Houses and, thereafter, reconciled
by the Bicameral Conference Committee.[4] The Reconciled Bill[5] was then separately ratified by both the Senate and
the House of Representatives[6] and approved into law by the President on 7 June 1995.
On 31 July 1995, the private respondents filed with the Regional Trial Court (RTC) of Manila a petition for declaratory
relief and for prohibition and injunction, with a prayer for a temporary restraining order.[7] As grounds for their petition,
the private respondents alleged that:
1. There were surreptitious and unauthorized insertion and addition of provisions in the Reconciled Bill which were
made without the knowledge and conformity of the Senate panel, thereby derogating the orderly procedure essential to
the legislative process and vitiating legislative consent;
2. R.A. No. 8050 derogates and violates the fundamental right of every Filipino to reasonable safeguards against
deprivation of life, liberty and property without due process of law in that it authorizes optometrists to engage in acts of
practice within the zone of medical practice through permitted use in certain kinds of diagnostic pharmaceutical agents
thereby exposing and subjecting those who avail of the services of optometrists to definite hazards which would inflict
upon them impairment of vision, resultant blindness, or possible loss of life;
3. R.A. No. 8050 derogates and violates the principle against undue delegation of legislative power when it provides for a
penalty of imprisonment for a maximum of eight years and a fine not exceeding P40,000.00 upon any person found
violating any rule or regulation promulgated pursuant to said law;
4. R.A. No. 8050 suppresses truthful advertising concerning optical goods and services in violation of the guaranty of
freedom of speech and press; and
5. R.A. No. 8050 employs vague ambiguous terms in defining prohibitions and restrictions, hence, it falls within the
ambit of void-for-vagueness doctrine which safeguards the guaranty of due process of law.
They then prayed that after due notice and hearing, an order be issued granting a writ of preliminary injunction
enjoining, restraining, restricting, and forbidding the respondents therein (herein petitioners), their agents, officers, and
employees from performing or undertaking any act in implementation or enforcement of R.A. No. 8050, or any of its
provisions, or its Code of Ethics, during the pendency of the case, until further orders of the court; and that after trial on
the merits, judgment be rendered: (a) declaring R.A. No. 8050 and its Code of Ethics null and void due to constitutional
violations and transgressions; (b) granting a writ of prohibition against all the respondents therein enjoining and
restraining them from enforcing or implementing R.A. No. 8050 or its Code of Ethics in whole or in part; and (c) making
permanent the writ of preliminary injunction.
An examination of the petition, docketed as Civil Case No. 95-74770 in Branch 29 of the RTC of Manila, disclosed that
among the petitioners included in the caption of the petition were Acebedo Optical Co., Inc.; Optometry Practitioner
Association of the Philippines (OPAP); Cenevis Optometrist Association (COA); Association of Christian-Muslim
Optometrist (ACMO); and Southern Mindanao Optometrist Association of the Philippines (SMOAP) each allegedly
represented by its president. The body of the petition, however, gave no details as to the juridical personality and
addresses of these alleged associations, save for Acebedo Optical Co., Inc. It merely listed the names of the alleged
presidents as well as their profession and home addresses.
239
As likewise disclosed in the petitioners Compliance[8] filed with the trial court on 18 August 1995, the names of Miguel
Acebedo, representing Acebedo Optical Co., Inc.; Miriam F. Llave, representing the OPAP; and Republica A. Panol,
another petitioner in Civil Case No. 95-74770, did not appear in the registration books of the Board of Optometry to be
authorized optometry practitioners in the Philippines, as evidenced by certifications issued by the Professional
Regulation Commission (PRC). Private respondents COA and ACMO were neither registered with the Securities and
Exchange Commission (SEC), as evidenced by the certifications issued by the latter.
On 1 August 1995, the trial court, per respondent Judge Angel V. Colet, issued a Temporary Restraining Order[9]
enjoining the respondents from enforcing or implementing R.A. No. 8050 or its Code of Ethics, until further orders of the
court; directing that summons, with a copy of the petition and of the temporary restraining order, be served
immediately; and setting the application for a writ of preliminary injunction for hearing on 15 August 1995.
On 11 August 1995, the petitioners herein, as respondents below, filed an Opposition[10] to the application for
preliminary injunction and alleged that:
(1) No proper ground exists to warrant the issuance of a writ as
(a) petitioners therein do not possess the requisite right as would entitle them to the relief demanded;
(b) petitioners have unquestionably not shown their legal existence or capacity to file the case, much less their authority
to file it in a representative capacity; and
(c) petitioners have misled the court into believing that an act is being done in the implementation of R.A. No. 8050
tending to make the judgment ineffectual;
(2) The implementation of R.A. No. 8050 carries no injurious effect; and
(3) Petitioners failed to overcome the presumption of constitutionality in favor of R.A. No. 8050.
At the hearing of the application for a writ of preliminary injunction, the parties indicated their intention to present
witnesses in support of their respective positions. Nevertheless, the trial court, finding such procedure not [to be]
conducive to the summary procedure appropriate to the auxiliary remedy of preliminary injunction, merely directed the
parties to submit their other arguments in writing with supporting evidence, after which the application for a writ of
preliminary injunction would be deemed submitted for resolution.[11] The parties complied therewith.
On 25 August 1995, the trial court issued the challenged order,[12] the dispositive portion of which reads as follows:
PREMISES CONSIDERED, the Court grants the writ of preliminary injunction prayed for until further orders of the Court,
respondents and their officials, agents and employees, are restrained, enjoined, and prohibited from undertaking in any
form or manner, the enforcement or implementation of the Revised Optometry Law [R.A. 8050] or any regulation or
Code of Ethics issued thereunder.
Let the writ issue upon filing with this Court a bond in the amount of ONE HUNDRED THOUSAND [P100,000.00] PESOS in
favor of respondents, conditioned upon payment of damages sustained by respondents in case the writ is later adjudged
to have been improvidently or improperly issued.
We quote its ratiocinations to support the above disposition:
Viewing the petition as a whole, which is duly verified, particularly the constitutional infirmities alleged by the
petitioners, and the supporting exhibits, the court is inclined to find prima facie, that petitioners have legal rights
affected by the Revised Optometry Law, and that in its operation, said Law is likely to inflict serious and irreparable
injury to such legal rights.
There is clear public right that laws enacted for the governance of citizens should be the product of the untrammeled
will of the peoples representatives in Congress. Petitioners contend and have adduced at least sufficient evidence to
support this order that, in the Revised Optometry Law, approved by the two Houses of Congress, there is a showing that
240
at least one major paragraph imposing penalties on corporate officers, was surreptitiously smuggled into the measure,
because the clear tenor and the content of the provision (Sec. 33) as agreed upon in the Bicameral Conference
Committee, duly reflected in its Minutes (Exhs. S and T) did not include such paragraph. The fraud upon the legislative
process thus practiced through surreptitious and insidious tampering, manifestly contravenes and violates said public
right, which violation petitioners as members of the Philippine body politic, have the status and standing to vindicate by
the present petition for extraordinary legal remedies. (See the rulings in Tanada v. Tuvera, 136 SCRA 27, particularly pp.
36-37, citing Severino v. Governor-General, Phil. 366, 378).
Similarly, there is likewise a public right that the laws enacted for the public good should in truth and in fact promote the
public good. Such public right would be negated and violated if, as petitioners allege, the Revised Optometry Law which
is intended to provide our people with better opportunities and better facilities for better vision, institutes a practice
which in its actual operation, exposes persons availing of optometric services to serious risk of impairment of vision,
possible loss of sight and even possible loss of life, through administration by optometrists of DPAs. If this be true, the
law under question violates that public right, because it permits inflicting of serious injury upon our people using
services of optometrists. After examining the different exhibits submitted by petitioners, in which trained experts in our
government agencies themselves attest to the dire consequences that persons on whom DPAs are used may suffer, the
Court finds prima facie basis for danger of irreparable injury to public health, which the Court should forestall in the
exercise of prudence by a preliminary writ of injunction, pending full inquiry and thorough determination after trial.
Apart from the public rights, which petitioners are entitled to assert in this action, there are also private individual rights
of petitioners which the Revised Optometry Law tends to injure, and which would be injured irreparably with the actual
operation of said law.
Hardest hit in this regard are the optometrists, whose vested right to continue in the practice is virtually bludgeoned by
the Revised Optometrist Law, as virtually admitted by respondents in their Opposition. On the one hand, the revised
concept of the practice of optometry [Sec. 4] mandates as standard, the use of DPAs in optometric examination. For this
reason, said Law authorizes virtual suspension of the licenses of the present crop of optometrists, until after they shall
have re-trained and qualified to use DPAs [Sec. 31]. In case such optometrists insist on practicing without the mandatory
training, their practice could be viewed as substandard if they would avoid use of DPAs [Sec. 4]. Alternatively, if they use
DPAs before they are qualified through mandatory training, they could incur criminal liability [Secs. 32 and 33]. In either
case, their use of DPAs without or after qualifying training, would expose them to malpractice suits from persons who
might have sustained injury through the use of DPAs. Again, they might not have the option of refraining from the use of
DPAs, since they could face an ethics charge for substandard practice in not using DPAs in their practice.
Finally, even petitioner Acebedo Co. would suffer injury in its operations because its activities, based on the affidavits
submitted as exhibits, would surely touch the boundaries of conduct prohibited and penalized in the Revised Optometry
Law. For one thing, its right to continue in employment, the optometrists working in its optical shop clinics [including
affiant petitioners] might be injured through a criminal charge that such employment constitutes a prohibited indirect
practice of optometry within the strictures of Section 5 in relation to Sec. 32. Or its advertising of optical goods and
wares, which is its right under the general law and the Constitution, could be charged as an offense under Section 32
and subjected to penalty under Section 33. These restraints, which could seriously prejudice existing legal rights, entitle
the petitioner corporation to the extraordinary remedy of declaratory relief, and to preliminary injunction pending the
holding of a trial on the merits. The Court understands that petitioner could have adduced more evidence than what
appears especially on the matter of the jeopardy to public health as a result of changes of optometric practice
introduced by the Revised Optometry Law. But as the Court understands it, preponderance is not required for
evidentiary support for the grant of preliminary injunction. As the rule stands, a sampling of relevant evidence is enough,
so as to give the Court a justification for the issuance of the writ [See Olalio v. Hizon, 196 SCRA 665; Syndicated Media
Access vs. CA, 219 SCRA 794].
Jurisprudence likewise supports the grant of preliminary writs of injunction, to maintain the status quo, in suits
questioning the constitutionality of laws with demonstrable prejudice of legal rights [J.M. & Co. v. CA, 3 SCRA 696].
On the basis of the main petition, which is for declaratory relief directed at the nullification of R.A. 8050 on
constitutional grounds, and for a writ of prohibition, likewise premised on the nullity of said law due to constitutional
infirmities, the Court finds that the whole or part of the relief which petitioners are seeking and to which prima facie
they are entitled, consists in restraining the enforcement or implementation of the law.
241
The Court likewise concludes, on its finding that both public rights would be prejudiced by the operation of R.A. 8050,
that its enforcement pendente would inflict substantial injustice to petitioners.[13]
On 1 September 1995, respondent Judge Colet issued a Writ of Preliminary Injunction,[14] the dispositive portion of
which reads:
IT IS HEREBY ORDERED by the undersigned that, until further orders, you, the said defendants, and all your attorneys,
representatives, agents, and any other person assisting you refrain from enforcing and/or implementing R.A. No. 8050
or its Code of Ethics.
The petitioners then filed this special civil action for certiorari and prohibition with a prayer for a writ of preliminary
injunction and/or temporary restraining order and alleged that:
RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND/OR ACTED WITHOUT OR IN EXCESS OF JURISDICTION IN
FINDING THAT PRIVATE RESPONDENTS HAVE LOCUS STANDI TO FILE THE PETITION A QUO.
II
RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND/OR ACTED IN EXCESS OF JURISDICTION IN DECREEING
THAT PRIMA FACIE EVIDENCE OF UNCONSTITUTIONALITY/INVALIDITY OF R.A. 8050 EXISTS WHICH WARRANT THE
ENJOINMENT OF ITS IMPLEMENTATION.
III
RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND/OR ACTED IN EXCESS OF JURISDICTION IN PRELIMINARILY
ENJOINING R.A. 8050 ON MERE ALLEGATIONS BY PRIVATE RESPONDENTS THAT THE SAME WOULD BRING INJURIOUS
EFFECTS TO THE HEALTH AND SAFETY OF THE PUBLIC.
IV
RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND/OR ACTED WITHOUT OR IN EXCESS OF JURISDICTION IN
ISSUING THE WRIT OF PRELIMINARY INJUNCTION.
As we see it, the assigned errors quoted above may be reduced to two key issues, viz.:
(1) The locus standi of the private respondents to question the constitutionality of R.A. No. 8050; and
(2) The absence of a valid cause of action for either declaratory relief or prohibition.
The petitioners maintain that for a party to have locus standi to question the validity of a statute, he must have a
personal and substantial interest in the case such that he has sustained or will sustain direct injury as a result of its
enforcement.[15] In this light, the private respondents do not have the requisite personal and substantial interest to
assail the constitutionality of R.A. No. 8050 for, per the certifications of the SEC, private respondents COA and ACMO are
not registered associations; and two of the alleged presidents of the respondent associations are not duly registered
optometrists as certified to by the PRC. Finally, the petitioners aver, the private respondents did not allege in their
petition in Civil Case No. 95-74770, and in their Rejoinder to the Opposition therein, their capacity to bring suit as
required by Section 4, Rule 8 of the Rules of Court.
Refuting this charge, the private respondents claim in their Comment on the petition that they have, as held by the trial
court, locus standi under the rule of Public Right pursuant to Tanada vs. Tuvera,[16] citing Severino vs. Governor
General;[17] moreover, as also found by the trial court, their rights as optometrists or optical companies would be
adversely affected by the assailed law. They further claim that they seek to protect their Constitutional rights to
property and freedom of expression from enforcement of the provisions of the challenged law, which bar truthful
advertisements and impose vague and unreasonable conditions for the continued practice of their profession. Insofar as
242
private respondents Acebedo Optical Co., Inc., and Panol are concerned, the said law would likewise adversely affect the
conduct of their business of maintaining optical shops and expose them to threats of criminal prosecution. Finally, they
contend that they also seek, as taxpayers and citizens, under the concept of Public Right, to bar the enforcement of the
law because it endangers the publics health, a danger clearly seen from the oppositions to the law filed before both
houses of Congress.
Only natural and juridical persons or entities authorized by law may be parties in a civil action, and every action must be
prosecuted or defended in the name of the real party in interest.[18] Under Article 44 of the Civil Code, an association is
considered a juridical person if the law grants it a personality separate and distinct from that of its members.
There is serious doubt as to the existence of private respondents OPAP, COA, ACMO, and SMOAP. For one, the body of
the petition in Civil Case No. 95-74770 makes no mention of these associations nor states their addresses. Further,
nowhere is it claimed therein that they are juridical entities. These run counter to Section 4, Rule 8 of the Rules of Court,
which provides that facts showing the capacity of a party to sue or the legal existence of an organized association of
persons that is made a party must be averred. Second, not even in the sworn statements[19] of the alleged presidents
representing the associations, which were offered in evidence in support of the application for a writ of preliminary
injunction, were such associations mentioned or named. Finally, in their Comment on the instant petition, the private
respondents chose to remain silent on the issue of the juridical personality of their associations.
For having failed to show that they are juridical entities, private respondents OPAP, COA, ACMO, and SMOAP must then
be deemed to be devoid of legal personality to bring an action, such as Civil Case No. 95-74770.
A real party in interest under Section 2, Rule 3 of the Rules of Court is a party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit.[20]
In the case at bench, since OPAP, COA, ACMO, and SMOAP were not shown to be juridical entities, they cannot, for
obvious reasons, be deemed real parties in interest. Moreover, since the names of private respondents Miguel Acebedo,
Miriam F. Llave, and Republica A. Panol do not appear in the registration books of the Board of Optometry as authorized
optometry practitioners in the Philippines,[21] they do not have the requisite personal and substantial interest in the
case. Even further, although private respondents Roberto Rodis, Jr., Cyril Corales, and Elmer Villarosa claim to be
practicing optometrists, the petition in Civil Case No. 95-74770 is bereft of any allegation to make them real parties in
interest to challenge the constitutionality of R.A. No. 8050.
As an attempt in extremis, the private respondents now assert in their comment that the petition for declaratory relief,
prohibition, and injunction was filed in their capacity as taxpayers and citizens, under the concept of Public Right, to bar
the enforcement of the law because it endangers public health.[22] They thus suggest that their petition is in the nature
of a taxpayers class suit.
As a class suit, Civil Case No. 95-74770 must fail. Not only did the private respondents fail to allege this in their petition,
they likewise failed to allege the existence and prove the requisites of a class suit, viz., the subject matter of the
controversy is one of common or general interest to many persons, and the parties are so numerous that it is
impracticable to bring them all before the court.[23]
Courts must exercise utmost caution before allowing a class suit, which is the exception to the requirement of joinder of
all indispensable parties. For while no difficulty may arise if the decision secured is favorable to the plaintiffs, a quandary
would result if the decision were otherwise as those who were deemed impleaded by their self-appointed
representatives would certainly claim denial of due process.[24]
Neither may the private respondents be allowed at this late stage to seek refuge under the doctrine allowing taxpayers
suits. While they claimed their petition in Civil Case No. 95-74770 was a taxpayers suit, and although this Court, in a
catena of cases, has shown liberality in granting locus standi to taxpayers in taxpayers suits,[25] the private respondents
have not adequately shown that this liberality must be extended to them. Their plea of injury or damage is nothing but a
sweeping generalization.
243
II
Civil Case No. 95-74770 must fail for yet another reason. As a special civil action for declaratory relief,[26] its requisites
are: (1) the existence of a justiciable controversy; (2) the controversy is between persons whose interests are adverse;
(3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue invoked is ripe for
judicial determination.[27] On this score, we find no difficulty holding that at least the first and fourth requisites are
wanting.
Then there is the unbending rule in constitutional law that courts will not assume jurisdiction over a constitutional
question unless the following requisites are first satisfied: (1) there must be an actual case or controversy involving a
conflict of rights susceptible of judicial determination; (2) the constitutional question must be raised by a proper party;
(3) the constitutional question must be raised at the earliest opportunity; and (4) the resolution of the constitutional
question must be necessary to the resolution of the case.[28]
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory.[29] It cannot be disputed that there is yet no actual case or controversy involving all or any
of the private respondents on one hand, and all or any of the petitioners on the other, with respect to rights or
obligations under R.A. No. 8050. This is plain because Civil Case No. 95-74770 is for declaratory relief. Then, too, as
adverted to earlier, the private respondents have not sufficiently established their locus standi to question the validity of
R.A. No. 8050.
The conclusion then is inevitable that the respondent Judge acted with grave abuse of discretion when he issued a writ
of preliminary injunction restraining the implementation of R.A. No. 8050, as well as of the Code of Ethics promulgated
thereunder, if one has been issued. Even if there was before him a case involving the law, prudence dictated that the
respondent Judge should not have issued the writ with undue haste, bearing in mind our decision, penned by Mr. Justice
Isagani A. Cruz, in Drilon vs. Lim,[30] where we stated:
We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this
authority being embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts
jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation, even as the
accused in a criminal action has the right to question in his defense the constitutionality of a law he is charge with
violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article X,
Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of
lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the
consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of
separation of powers. As the questioned act is usually the handiwork of the legislative or the executive departments, or
both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court
in the consideration of its validity, which is better determined after a thorough deliberation of a collegiate body and with
the concurrence of the majority of those who participated in its discussion.
It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before
declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and
legislative departments and determined by them to be in accordance with the fundamental law before it was finally
approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing
that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required
majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act be struck
down.
WHEREFORE, the instant petition is GRANTED. The challenged order of 25 August 1995 of respondent Judge Angel V.
Colet in Civil Case No. 95-74770 granting the application for the issuance of a writ of preliminary injunction, and the writ
of preliminary injunction issued on 1 September 1995 are hereby ANNULLED and SET ASIDE.
244
The respondent Judge is further DIRECTED to DISMISS Civil Case No. 95-74770.
Costs against private respondents Acebedo Optical Co., Inc., Republica A. Panol, and the alleged presidents of
Optometry Practitioner Association of the Philippines, Cenevis Optometrist Association, Association of Christian-Muslim
Optometrists, Southern Mindanao Optometrist Association of the Philippines.
SO ORDERED.
[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order
seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the deployment
of the Philippine Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols around the
metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of
crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to
execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which detailed the manner by
which the joint visibility patrols, called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was placed
under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum,
dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief.[3] In the Memorandum, the
President expressed his desire to improve the peace and order situation in Metro Manila through a more effective crime
prevention program including increased police patrols.[4] The President further stated that to heighten police visibility in
the metropolis, augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section
18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each
other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or
lawless violence.[6] Finally, the President declared that the services of the Marines in the anti-crime campaign are
merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in the
conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized
syndicates whose members include active and former police/military personnel whose training, skill, discipline and
firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel.
4. MISSION:
245
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila
streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes
especially those perpetrated by organized crime syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the
Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary responsibility over Internal Security
Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by
organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the
role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein
delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPO-Philippine
Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be organized to
provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing
the security situation.
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping Center,
Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul LOI 02/2000 and to
declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that:
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE
DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE
II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF

GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN
FUNCTIONS OF THE GOVERNMENT.
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE
MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and
the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January 2000, required the Solicitor
General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines,
contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police
visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate the
civilian supremacy clause in the Constitution.
246
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the
Presidents factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the
petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor
did he commit a violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the
following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being challenged.[13] The term interest
means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest.[14] The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole
citizenry. Based on the standards above-stated, the IBP has failed to present a specific and substantial interest in the
resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate
the standards of the law profession and to improve the administration of justice is alien to, and cannot be affected by
the deployment of the Marines. It should also be noted that the interest of the National President of the IBP who signed
the petition, is his alone, absent a formal board resolution authorizing him to file the present action. To be sure,
members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming
that it has duly authorized the National President to file the petition, has not shown any specific injury which it has
suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility patrols. Neither
is it alleged that any of its members has been arrested or that their civil liberties have been violated by the deployment
of the Marines. What the IBP projects as injurious is the supposed militarization of law enforcement which might
threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only is the
presumed injury not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully established a direct and personal injury as a consequence
of the questioned act, it does not possess the personality to assail the validity of the deployment of the Marines. This
Court, however, does not categorically rule that the IBP has absolutely no standing to raise constitutional issues now or
247
in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to obtain
judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which
does not satisfy the requirement of legal standing when paramount interest is involved.[16] In not a few cases, the Court
has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.[17] Thus, when the issues raised are of paramount importance to the public,
the Court may brush aside technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight
as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing
tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition
almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of calling
the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the
deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section
18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the
aforestated provision. According to the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of
the Marines. Thus, the IBP prays that this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed forces
is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which are
beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of judicial
review. But, while this Court gives considerable weight to the parties formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus, while the
parties are in agreement that the power exercised by the President is the power to call out the armed forces, the Court
is of the view that the power involved may be no more than the maintenance of peace and order and promotion of the
general welfare.[20] For one, the realities on the ground do not show that there exist a state of warfare, widespread civil
unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the latter
part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the
Presidents exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege
of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result.
248
We now address the Solicitor Generals argument that the issue involved is not susceptible to review by the judiciary
because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.[22] It
pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances
that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are political questions. The reason
is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will
not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to
step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of the Constitution
as matters for discretionary action by a particular branch of government or to the people themselves then it is held to be
a political question. In the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarassment from multifarious pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.[25] Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of
power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions
have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court.[27] When
political questions are involved, the Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility.[29] Under this definition, a court is without power to directly decide matters over which full discretionary
authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the
President, it may look into the question of whether such exercise has been made in grave abuse of discretion.[30] A
showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for
the improvident exercise or abuse thereof may give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily
exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text
of the Constitution itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or substitute its
own. However, this does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed
forces, it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no
justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that grave abuse
was committed because the power to call was exercised in such a manner as to violate the constitutional provision on
249
civilian supremacy over the military. In the performance of this Courts duty of purposeful hesitation[32] before declaring
an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call
out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is
also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the calling out power in a different
category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification. Expressio unius est exclusio alterius. Where the terms are expressly
limited to certain matters, it may not, by interpretation or construction, be extended to other matters.[33] That the
intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President,
is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-
in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend
the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.
250
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his
judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by
the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence:
The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. So we feel
that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by the First
Sentence: The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion.
So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing martial law
or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to
impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the
writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or
rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the
armed forces. The only criterion is that whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion
and wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this
Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the
same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual
standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed
forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of
which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call,
on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and
mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must
be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The
determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order
every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was
gravely abused, the Presidents exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum,
he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings
251
continue to occur in Metro Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the recent bombings perpetrated by
lawless elements in the shopping malls, public utilities, and other public places. These are among the areas of
deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character
of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts
that by the deployment of the Marines, the civilian task of law enforcement is militarized in violation of Section 3, Article
II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling
of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of
the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the
Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines
authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines
joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol
procedures.[38] It is their responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to these soldiers.[40] In view of
the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the
deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it
amount to an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of
the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in
civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The
real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not
with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force
Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated
or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment
of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance required in conducting the
patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction.
The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally civil functions. As correctly pointed out by the Solicitor General, some of the
multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and
the military together in a relationship of cooperation, are:
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice,
long pursued to the knowledge of Congress and, yet, never before questioned.[59] What we have here is mutual support
and cooperation between the military and civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic
purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of
the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision of
the Act states:
1385. Use of Army and Air Force as posse comitatus

252
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined not more
than $10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US courts[63]
apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that
the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or
compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for
assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH:
PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in
nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military involvement, even
when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible
use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian supremacy
clause in the Constitution is committed. On this point, the Court agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or compulsory
military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and
9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and
defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military
power, the deployment of a handful of Philippine Marines constitutes no impermissible use of military power for civilian
law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will gain
ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in
the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or jeopardized
the civil liberties of the people, this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained that
his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to safeguard
peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom and
democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
FRANCISCO CHAVEZ,
Petitioner,
253
- versus -
RAUL M. GONZALES,
in his capacity as the
Secretary of the
Department of Justice;
and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC),
Respondents.
G.R. No. 168338
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES, and
LEONARDO-DE CASTRO, JJ.
Promulgated:
February 15, 2008
x-------------------------------------------------------------------------------------x
DECISION
PUNO, C.J.:
A. Precis
254
In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free
speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger
that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances
meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing
more than a naked means to prevent the free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005,
Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by
releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria
Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two
versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which
would suggest that the President had instructed the COMELEC official to manipulate the election results in the
Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but
subsequently made a retraction. [7]
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an
alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President,
the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who
had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the
Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing
or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if
the crime was committed or was being committed in their presence.[9]
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to
go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of
an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales
said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television
network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more
widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and
supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10]
5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC
warns all radio stations and television network owners/operators that the conditions of the authorization and permits
issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said
companies shall not use [their] stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession
of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the
COMELEC regarding supposed violation of election laws.
These personalities have admitted that the taped conversations are products of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the
tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation
255
of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to
these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent
after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that
their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio
and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting
and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other
matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful
misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and
television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false
information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of
said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas
(KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of
expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement
which states, among others, that: [12]
NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP &
its members have always been committed to the exercise of press freedom with high sense of responsibility and
discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The
NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression
of views.
What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These
include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion.
The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or
commentaries.
The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to
the process being undertaken to verify and validate the authenticity and actual content of the same.
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the
NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the
people to information on matters of public concern,[14] petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the
present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public
concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for
prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15]
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Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the
petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that
broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant
to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television]
and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between
the NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of
the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right
to free speech, free expression and a free press. For another, the recipients of the press statements have not come
forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with
respondent NTC that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the Court so largely depends for illumination of difficult constitutional questions. [19]
But as early as half a century ago, we have already held that where serious constitutional questions are involved, the
transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing
aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to
wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on
public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other
branches of government have kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance
to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing
as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other
issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all
issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of
speech and of the press.
But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed,
the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now
beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and
their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between
print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing
blurring of the lines of distinction between print and broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,

OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.[24]
Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a
preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights
codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican institutions and the complement of free
speech.[26] This preferred status of free speech has also been codified at the international level, its recognition now
enshrined in international law as a customary norm that binds all nations.[27]
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In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our
constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987
Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable
condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the
freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the
exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that
they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both
be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill
of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the
Court in Gonzales v. Commission on Elections, [32] in which it was held:
At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship and punishment. There is to be no previous restraint on the communication
of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33]
Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable,
whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people
in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early
as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and
assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the
principle that debate on public issue should be uninhibited, robust, and wide-open. [35]
Freedom of speech and of the press means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on
any matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well --
if not more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this
freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful,
freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it
be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought
that we hate, no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It
protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular
field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about
which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their
period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious,
political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to
advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to
speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting
Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the
broad protection of the clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of
film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
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From the language of the specific constitutional provision, it would appear that the right to free speech and a free press
is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the
provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an
absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom.
Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the
community or society.[43] The difference in treatment is expected because the relevant interests of one type of speech,
e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in
the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We
have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are
not entitled to constitutional protection and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been
applied differently to each category, either consciously or unconsciously. [46] A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have developed different tests as to specific types or
categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media
and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile
audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly
and petition. [47]
Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e.,
(a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used
as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious
and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c)
the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial
danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely
high. [50]
As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger
test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear
and present danger test. [51]
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and
expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current
affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest
weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]
The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can
be assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits
from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who
interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be
they private individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED REGULATIONS
259
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of
freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to
publication; [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55]
Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior
restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from
content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This
presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions
on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather,
the determinations were always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of
speech has always been based on the circumstances of each case, including the nature of the restraint. And in its
application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested
by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining
the appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish;
and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers,
resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. [57]
Any law or official that requires some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act
that restrains speech is presumed invalid,[58] and any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are
invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation
of the challenged act as against the appropriate test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of
speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned
with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined
standards;[60] or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the
utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they
are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere
rationality that is required of any other law and the compelling interest standard applied to content-based
restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but
also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that
is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers
an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to
the furtherance of that interest. [64]
On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the
strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and
260
present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the
presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be
restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior
restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only
by showing a substantive and imminent evil that has taken the life of a reality already on ground.[67] As formulated, the
question in every case is whether the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree.[68]
The regulation which restricts the speech content must also serve an important or substantial government interest,
which is unrelated to the suppression of free expression. [69]
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest.
[70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest
will be invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose,
with the least restrictive means undertaken. [72]
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A
content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and
present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague. [74]
Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and
present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one objecta
specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official.
Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free
speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument,
insofar as it has been invoked to validate a content-based restriction on broadcast media.
The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of
books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to
regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and
television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast
media from the application of the strict scrutiny standard that they would otherwise apply to content-based
restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media
are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print
medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children.[78] Because
cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other
media, nor go so far as to demand that such regulations serve compelling government interests,[79] they are decided on
whether the governmental restriction is narrowly tailored to further a substantial governmental interest,[80] or the
intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between
broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have
deviated with the American conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S. conception
of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.
261
Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling
government interest that also has constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that
the clear and present danger test applies to content-based restrictions on media, without making a distinction as to
traditional print or broadcast media.
The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation
(DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues
to be the clear and present danger rule[83]
Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of
national security. Although the issue had become moot and academic because the owners were no longer interested to
reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all
inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to
what needs be considered in cases involving broadcast media. Thus:[84]
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and
expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule,
that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd
Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More
recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing.
(4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast
corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of
others.
All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily,
however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a
patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the free expression clause. First, broadcast media have
established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the
same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and
current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and
regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines
beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.
262
On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message
may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every
person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities,
persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the
vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity
to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into
account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls
for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio
and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time,
the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are
limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular
means of disseminating varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case
of United States v. Bustos (37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound
can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of
expression clauses of the Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify
differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically
declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all
forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected
speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme
necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared
in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to
newspaper and print media, it was not as to what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to
determine free expression challenges was the clear and present danger, again without distinguishing the media.[87]
Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity
standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal
approach would be used to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It
is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a
set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that
the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast
company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that
involve freedoms of speech and of the press.[89]
263
This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the
broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also
involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time
and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in
a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of
the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the
grant of the medias franchise, without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions,
where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative
bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but
have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that
owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints,
whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the
public in a number of respects, but are also seen as possible sources of harm.[93]
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought
to provide a rationale. However, cable and satellite television have enormously increased the number of actual and
potential channels. Digital technology will further increase the number of channels available. But still, the argument
persists that broadcasting is the most influential means of communication, since it comes into the home, and so much
time is spent watching television. Since it has a unique impact on people and affects children in a way that the print
media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued
further that a significant main threat to free expressionin terms of diversitycomes not from government, but from
private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope
and extent of broadcast media regulation. [94]
The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the
computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to
be appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet
and the broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to
the Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media
must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the
differential treatment. [98]
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to
the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content
is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality
by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the
presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary.
On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge
freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil
which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The
records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the
clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices
in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to
the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence
of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes
different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs
264
are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether
its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only
an adverse effect on a persons private comfort but does not endanger national security. There are laws of great
significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In
fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain
freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest
must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants
protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference
of all these factors to determine compliance with the clear and present danger test, the Court should not be
misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump
the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the
respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the
exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly
endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements
of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has
transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by
respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements
were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done,
such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior
restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular.
Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the
prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no
less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also
came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those
perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of
speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the
subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in
light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional
questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct
must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases
where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them
down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the
official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped
conversation between the President and other personalities, for constituting unconstitutional prior restraint on the
exercise of freedom of speech and of the press
SO ORDERED.
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M.
FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader,
265
AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON,
PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS,
Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and in behalf of the President of the Philippines, Respondents.
x-------------------------x
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL
MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by FERDINAND GAITE,
and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo,
Respondent.
x-------------------------x
G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of
Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.
x-------------------------x
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and
the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
266
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep certain information confidential in
pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished
delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize
the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the
necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by
issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for
being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from
a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of
the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the
executive department, bureaus, and offices including those employed in Government Owned and Controlled
Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the
Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North
Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations2 dated September 22, 2005 to the
following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear
Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing
scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on
June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral
Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26,
2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon
delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria
Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in
Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5)
Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S.
Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a pressing operational
situation that demands [his utmost personal attention" while "some of the invited AFP officers are currently attending to
other urgent operational matters."
267
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a
letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said
officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to [his
request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to Section 6 thereof,
took effect immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of
the government, all heads of departments of the Executive Branch of the government shall secure the consent of the
President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the appearance
shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and
Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public officers covered
by this executive order, including:
Conversations and correspondence between the President and the public official covered by this executive order
(Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of national security should not be divulged
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
268
Senior officials of executive departments who in the judgment of the department heads are covered by the executive
privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the
Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive
privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof
shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance
of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public
officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and
another letter8 informing him "that officials of the Executive Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464]"
and that "said officials have not secured the required consent from the President." On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of
the Committee on National Defense and Security, informing him "that per instruction of [President Arroyo], thru the
Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and
Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by
the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among
all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her
approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial
proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent
letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority
Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice
(DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza,
Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases
Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail
President Cortes sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition,
were filed before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin
Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government
employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice,
democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the
issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that
respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be
269
prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to
congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from
fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party
entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened
by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are
threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for
being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource non-
governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has
legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a
right which was denied to the public by E.O. 464,13 prays, that said order be declared null and void for being
unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue
of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with
its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates powers and
functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and
House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging
that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its
members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be
resolved to avert a constitutional crisis between the executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other
military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested
for a clearance from the President to allow [them] to appear before the public hearing" and that "they will attend once
[their] request is approved by the President." As none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program
of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and
26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA
Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson
Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of appropriate clearance from
the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was
allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated
Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine
270
lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for
certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing,
enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art.
VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy
that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective
memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that
it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail
investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R.
No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did
not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27 was granted,
subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in the interest
of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 on March
13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.
271
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a
valid exercise of the Courts power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act
must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement
between the parties lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it
clear that they, adverting to the non-appearance of several officials of the executive department in the investigations
called by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its
different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain
that Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by
the House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that of the
other petitioner groups and individuals who profess to have standing as advocates and defenders of the Constitution,
respondents contend that such interest falls short of that required to confer standing on them as parties "injured-in-
fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by
reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v. Philippine
Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must have a personal and
substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O.
464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the
ability of the members of Congress to access information that is crucial to law-making.46 Verily, the Senate, including its
individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to
assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers
and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official
action which they claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador
(Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of
Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being
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sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the
House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized and
underrepresented sectors, organizations and parties who lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of
their co-petitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent
members of the IBP Board of Governors and the IBP in behalf of its lawyer members,50 invoke their constitutional right
to information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is
essential to the effective exercise of other constitutional rights51 and to the maintenance of the balance of power
among the three branches of the government through the principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the assertion of a public right, the mere fact that
he is a citizen satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues
raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded
standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is
public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a
more direct and specific interest in raising the questions being raised.54 The first and last determinants not being
present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and
specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its
allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a "generalized interest"
which it shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable
element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.55 In fine, PDP-
Labans alleged interest as a political party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually
withheld her consent or prohibited the appearance of the invited officials.56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the President, not that the President
prohibited their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on September
28, 2005, respondents claim that the instruction not to attend without the Presidents consent was based on its role as
Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse
its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for
challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of
the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is
concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing
from the President in order to bar officials from appearing before Congress.
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As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of
petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present
case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing
on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the
information in the possession of these officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the
power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected
by such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the
power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950
under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates
by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point,
he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for
contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process
to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate
wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or
change; and where the legislative body does not itself possess the requisite information which is not infrequently true
recourse must be had to others who do possess it. Experience has shown that mere requests for such information are
often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which
may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that
the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers whose
positions it is within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that
the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive
operations.
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As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in
the legislative process. If the information possessed by executive officials on the operation of their offices is necessary
for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to
compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may
thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject
of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part
of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision
requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure.
Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an
imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if
they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at
present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded
judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it
being mentioned in its provisions, its preambular clauses,62 and in its very title, a discussion of executive privilege is
crucial for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the
1986 Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used in the
legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the
courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive branch
officers to withhold information from Congress, the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67
Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate
to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least
three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either
judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the
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identity of persons who furnish information of violations of law to officers charged with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions
and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of
information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might
reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold information related to pending
investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure
requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of
highly important executive responsibilities involved in maintaining governmental operations, and extends not only to
military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic
decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not
only whether the requested information falls within one of the traditional privileges, but also whether that privilege
should be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was
the validity of President Nixons claim of executive privilege against a subpoena issued by a district court requiring the
production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on
the Presidents general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that
while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to
the extent that it relates to the effective discharge of a Presidents powers. The Court, nonetheless, rejected the
Presidents claim of privilege, ruling that the privilege must be balanced against the public interest in the fair
administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of
claims of privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent assertion of
the privilege to deny information to Congress, beginning with President Washingtons refusal to turn over treaty
negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.74
However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as
Nixon, recognized the Presidents privilege over his conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that
the balance favored the President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77 Almonte
used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision
which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of
all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to
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express except privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation
of powers under the Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve,
as expressly stated in the decision, the right of the people to information.78 Nonetheless, the Court recognized that
there are certain types of information which the government may withhold from the public, thus acknowledging, in
substance if not in name, that executive privilege may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters."80 The same case held that closed-door Cabinet meetings are also a recognized limitation on
the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to
matters recognized as "privileged information under the separation of powers,"82 by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and information on investigations
of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to
information.
From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public,
is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions
indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President
prior to appearing before Congress. There are significant differences between the two provisions, however, which
constrain this Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any
official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not
made to depend on the department heads possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all.
Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has
been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the
request of either House, as the rules of each House shall provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22
which provides for the question hour must be interpreted vis--vis Section 21 which provides for the power of either
House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of the
Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions of
Congress.
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MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that
members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang
Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent
inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is
the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet
ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does
not mean that they need not come when they are invited or subpoenaed by the committee of either House when it
comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question
Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter,
may be summoned and if he refuses, he can be held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant
to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of
department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to
the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give
his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of
putting it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21,
which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is
not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so
we put Question Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only
in the application of check and balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In
other words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner
Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
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Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the
same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners
understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries
during the question hour. Commissioner Davides only concern was that the two provisions on these distinct powers be
placed closely together, they being complementary to each other. Neither Commissioner considered them as identical
functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner
Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct functions
of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on
the Legislative Department. His views may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and
the operation of the government,85 corresponding to what is known in Britain as the question period. There was a
specific provision for a question hour in the 1973 Constitution86 which made the appearance of ministers mandatory.
The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are
also members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister
and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of
government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure of
office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet remain
in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the
Prime Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in
the present Constitution so as to conform more fully to a system of separation of powers.88 To that extent, the question
hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system.
That department heads may not be required to appear in a question hour does not, however, mean that the legislature
is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress right to executive information in the performance of its legislative
function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the
right to obtain information from any source even from officials of departments and agencies in the executive branch.
In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear
separation between the legislative and executive branches. It is this very separation that makes the congressional right
to obtain information from the executive so essential, if the functions of the Congress as the elected representatives of
the people are adequately to be carried out. The absence of close rapport between the legislative and executive
branches in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce made reliance by the Congress upon its right
to obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of administration in a system such
as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation,
the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to
conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function.
When Congress merely seeks to be informed on how department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping
with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry
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in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands
for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by
a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive
official may be exempted from this power the President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It is based on her being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-
standing custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency,
judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of
powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute,
as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to
pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference
to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in
the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule
of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question
hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the
question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is
not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim
of privilege is subsequently made, either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President
prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the
heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and
the National Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2
"Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a similar finding of coverage under
executive privilege.
280
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons.
Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific
categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the
reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the
person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in
Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an official is "covered by the executive
privilege," such official is subjected to the requirement that he first secure the consent of the President prior to
appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same
is permitted by the President. The proviso allowing the President to give its consent means nothing more than that the
President may reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President
under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the President has not reversed such determination.
Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied claim that
the information is being withheld by the executive branch, by authority of the President, on the basis of executive
privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the
implied nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the
North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the
Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the
President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation
Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In
Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not
secured the required consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested
to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly
state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited
officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination
has been made, by the designated head of office or the President, that the invited official possesses information that is
covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the
same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing prohibition against their appearance before
Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a determination that the information required by
the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President.
In fine, an implied claim of privilege has been made by the executive.
281
While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against
Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation
of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-
door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive
sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a
co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.91 (Emphasis and
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor
and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid
per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the
implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While
Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress
is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended
to be comprehensive, but a mere statement of what is included in the phrase "confidential or classified information
between the President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not
suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the
President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested
information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem
like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private
party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal consideration by that officer. The court itself must determine
whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the
very thing the privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be
respected.93 These, in substance, were the same criteria in assessing the claim of privilege asserted against the
Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate Select
Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby
preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97

282
On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its
objection to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by claimant
would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has not shown
nor even alleged that those who evaluated claimants product were involved in internal policymaking, generally, or in
this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court would have to assume that the evaluation
and classification of claimants products was a matter of internal policy formulation, an assumption in which this Court is
unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain
reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description of the documents within
its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit
now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim.
An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by
the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally
insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a
broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside
scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating
the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions.
For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the
association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have
required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given
the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the
records. To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its
authority and an obstruction of its processes. His failure to make any such statement was "a patent evasion of the duty
of one summoned to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity
as to compel disclosure of the information which the privilege is meant to protect.103 A useful analogy in determining
the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself
his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is
justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if the witness,
upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection which the privilege is designed to
guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which
it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is
merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with
an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine
whether the withholding of information is justified under the circumstances of each case. It severely frustrates the
power of inquiry of Congress.
283
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of
office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the
other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the
nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of
authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the
United States where, so it claims, only the President can assert executive privilege to withhold information from
Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information
is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the
official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing
the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere
silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as
already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment
of the unique role and responsibilities of the executive branch,105 or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive responsibilities.106 The doctrine of executive
privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in
pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to
invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which
case the Executive Secretary must state that the authority is "By order of the President," which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the
executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is
even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere
silence. Section 3, in relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment,
might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive
Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the
Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege.
If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege,
Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of
the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under
Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of legislation."
That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution
mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to
ensure respect for such officials does not change the infirm nature of the authorization itself.
Right to Information
284
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters
of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not
merely the legislative power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of
inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the
production of documents pursuant to his right to information does not have the same obligatory force as a subpoena
duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating their own opinions on the matter before Congress
opinions which they can then communicate to their representatives and other government officials through the various
legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the
extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating thereto can such bear fruit.107 (Emphasis and
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need
for publication. On the need for publishing even those statutes that do not directly apply to people in general, Taada v.
Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate
to the people in general albeit there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely
cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic
may question before this Court. Due process thus requires that the people should have been apprised of this issuance
before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If
the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected.
285
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information
without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of
invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is
impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine
right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular
sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations
of government, but we shall have given up something of much greater value our right as a people to take part in
government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005),
"Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
[G.R. No. 155336. November 25, 2004]
COMMISSION ON HUMAN RIGHTS EMPLOYEES ASSOCIATION (CHREA) Represented by its President, MARCIAL A.
SANCHEZ, JR., petitioner, vs. COMMISSION ON HUMAN RIGHTS, respondent.
DECISION
CHICO-NAZARIO, J.:
Can the Commission on Human Rights lawfully implement an upgrading and reclassification of personnel positions
without the prior approval of the Department of Budget and Management?
Before this Court is a petition for review filed by petitioner Commission on Human Rights Employees Association
(CHREA) challenging the Decision[1] dated 29 November 2001 of the Court of Appeals in CA-G.R. SP No. 59678 affirming
the Resolutions[2] dated 16 December 1999 and 09 June 2000 of the Civil Service Commission (CSC), which sustained the
validity of the upgrading and reclassification of certain personnel positions in the Commission on Human Rights (CHR)
despite the disapproval thereof by the Department of Budget and Management (DBM). Also assailed is the resolution
dated 11 September 2002 of the Court of Appeals denying the motion for reconsideration filed by petitioner.
The antecedent facts which spawned the present controversy are as follows:
On 14 February 1998, Congress passed Republic Act No. 8522, otherwise known as the General Appropriations Act of
1998. It provided for Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy. The last
portion of Article XXXIII covers the appropriations of the CHR. These special provisions state:
1. Organizational Structure. Any provision of law to the contrary notwithstanding and within the limits of their respective
appropriations as authorized in this Act, the Constitutional Commissions and Offices enjoying fiscal autonomy are
authorized to formulate and implement the organizational structures of their respective offices, to fix and determine the
salaries, allowances, and other benefits of their personnel, and whenever public interest so requires, make adjustments
in their personal services itemization including, but not limited to, the transfer of item or creation of new positions in
their respective offices: PROVIDED, That officers and employees whose positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and separation pay in accordance with existing laws, which shall be
payable from any unexpended balance of, or savings in the appropriations of their respective offices: PROVIDED,
FURTHER, That the implementation hereof shall be in accordance with salary rates, allowances and other benefits
authorized under compensation standardization laws.
286
2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal autonomy are hereby authorized to use
savings in their respective appropriations for: (a) printing and/or publication of decisions, resolutions, and training
information materials; (b) repair, maintenance and improvement of central and regional offices, facilities and
equipment; (c) purchase of books, journals, periodicals and equipment; (d) necessary expenses for the employment of
temporary, contractual and casual employees; (e) payment of extraordinary and miscellaneous expenses, commutable
representation and transportation allowances, and fringe benefits for their officials and employees as may be authorized
by law; and (f) other official purposes, subject to accounting and auditing rules and regulations. (Emphases supplied)
On the strength of these special provisions, the CHR, through its then Chairperson Aurora P. Navarette-Recia and
Commissioners Nasser A. Marohomsalic, Mercedes V. Contreras, Vicente P. Sibulo, and Jorge R. Coquia, promulgated
Resolution No. A98-047 on 04 September 1998, adopting an upgrading and reclassification scheme among selected
positions in the Commission, to wit:
WHEREAS, the General Appropriations Act, FY 1998, R.A. No. 8522 has provided special provisions applicable to all
Constitutional Offices enjoying Fiscal Autonomy, particularly on organizational structures and authorizes the same to
formulate and implement the organizational structures of their respective offices to fix and determine the salaries,
allowances and other benefits of their personnel and whenever public interest so requires, make adjustments in the
personnel services itemization including, but not limited to, the transfer of item or creation of new positions in their
respective offices: PROVIDED, That officers and employees whose positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and separation pay in accordance with existing laws, which shall be
payable from any unexpanded balance of, or savings in the appropriations of their respective offices;
WHEREAS, the Commission on Human Rights is a member of the Constitutional Fiscal Autonomy Group (CFAG) and on
July 24, 1998, CFAG passed an approved Joint Resolution No. 49 adopting internal rules implementing the special
provisions heretoforth mentioned;
NOW THEREFORE, the Commission by virtue of its fiscal autonomy hereby approves and authorizes the upgrading and
augmentation of the commensurate amount generated from savings under Personal Services to support the
implementation of this resolution effective Calendar Year 1998;
Let the Human Resources Development Division (HRDD) prepare the necessary Notice of Salary Adjustment and other
appropriate documents to implement this resolution; . . . .[3] (Emphasis supplied)
Annexed to said resolution is the proposed creation of ten additional plantilla positions, namely: one Director IV
position, with Salary Grade 28 for the Caraga Regional Office, four Security Officer II with Salary Grade 15, and five
Process Servers, with Salary Grade 5 under the Office of the Commissioners. [4]
On 19 October 1998, CHR issued Resolution No. A98-055[5] providing for the upgrading or raising of salary grades of the
following positions in the Commission:
Number of Positions
Position
Title
Salary Grade
Total Salary Requirements
From
To
287
From
To
12
Attorney VI (In the Regional Field Offices)
Director IV
26
28
P229,104.00
Director III
Director IV
27
28
38,928.00
Financial & Management Officer II
Director IV
24
28
36,744.00
Budget Officer III
Budget Officer IV
18
24
51,756.00
1
288
Accountant III
Chief Accountant
18
24
51,756.00
Cashier III
Cashier V
18
24
51,756.00
Information Officer V
Director IV
24
28
36,744.00[6]
It, likewise, provided for the creation and upgrading of the following positions:
A. Creation
Number of Positions
Position Title
Salary Grade
Security Officer II (Coterminous)
15
684,780.00
B. Upgrading
289
Number of Positions
Position Title
Salary Grade
From
To
From
To
Attorney V
Director IV
25
28
P28,092.00
Security Officer I
Security Officer II
11
15
57,456.00
------------------
290
Total 3
P 85,548.00[7]
To support the implementation of such scheme, the CHR, in the same resolution, authorized the augmentation of a
commensurate amount generated from savings under Personnel Services.
By virtue of Resolution No. A98-062 dated 17 November 1998, the CHR collapsed the vacant positions in the body to
provide additional source of funding for said staffing modification. Among the positions collapsed were: one Attorney III,
four Attorney IV, one Chemist III, three Special Investigator I, one Clerk III, and one Accounting Clerk II.[8]
The CHR forwarded said staffing modification and upgrading scheme to the DBM with a request for its approval, but the
then DBM secretary Benjamin Diokno denied the request on the following justification:
Based on the evaluations made the request was not favorably considered as it effectively involved the elevation of the
field units from divisions to services.
The present proposal seeks further to upgrade the twelve (12) positions of Attorney VI, SG-26 to Director IV, SG-28. This
would elevate the field units to a bureau or regional office, a level even higher than the one previously denied.
The request to upgrade the three (3) positions of Director III, SG-27 to Director IV, SG-28, in the Central Office in effect
would elevate the services to Office and change the context from support to substantive without actual change in
functions.
In the absence of a specific provision of law which may be used as a legal basis to elevate the level of divisions to a
bureau or regional office, and the services to offices, we reiterate our previous stand denying the upgrading of the
twelve (12) positions of Attorney VI, SG-26 to Director III, SG-27 or Director IV, SG-28, in the Field Operations Office
(FOO) and three (3) Director III, SG-27 to Director IV, SG-28 in the Central Office.
As represented, President Ramos then issued a Memorandum to the DBM Secretary dated 10 December 1997, directing
the latter to increase the number of Plantilla positions in the CHR both Central and Regional Offices to implement the
Philippine Decade Plan on Human Rights Education, the Philippine Human Rights Plan and Barangay Rights Actions
Center in accordance with existing laws. (Emphasis in the original)
Pursuant to Section 78 of the General Provisions of the General Appropriations Act (GAA) FY 1998, no organizational unit
or changes in key positions shall be authorized unless provided by law or directed by the President, thus, the creation of
a Finance Management Office and a Public Affairs Office cannot be given favorable recommendation.
Moreover, as provided under Section 2 of RA No. 6758, otherwise known as the Compensation Standardization Law, the
Department of Budget and Management is directed to establish and administer a unified compensation and position
classification system in the government. The Supreme Court ruled in the case of Victorina Cruz vs. Court of Appeals, G.R.
No. 119155, dated January 30, 1996, that this Department has the sole power and discretion to administer the
compensation and position classification system of the National Government.
Being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and
create positions without approval of the DBM. While the members of the Group are authorized to formulate and
implement the organizational structures of their respective offices and determine the compensation of their personnel,
291
such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and
Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law. We
therefore reiterate our previous stand on the matter.[9] (Emphases supplied)
In light of the DBMs disapproval of the proposed personnel modification scheme, the CSC-National Capital Region Office,
through a memorandum dated 29 March 1999, recommended to the CSC-Central Office that the subject appointments
be rejected owing to the DBMs disapproval of the plantilla reclassification.
Meanwhile, the officers of petitioner CHREA, in representation of the rank and file employees of the CHR, requested the
CSC-Central Office to affirm the recommendation of the CSC-Regional Office. CHREA stood its ground in saying that the
DBM is the only agency with appropriate authority mandated by law to evaluate and approve matters of reclassification
and upgrading, as well as creation of positions.
The CSC-Central Office denied CHREAs request in a Resolution dated 16 December 1999, and reversed the
recommendation of the CSC-Regional Office that the upgrading scheme be censured. The decretal portion of which
reads:
WHEREFORE, the request of Ronnie N. Rosero, Hubert V. Ruiz, Flordeliza A. Briones, George Q. Dumlao [and], Corazon A.
Santos-Tiu, is hereby denied.[10]
CHREA filed a motion for reconsideration, but the CSC-Central Office denied the same on 09 June 2000.
Given the cacophony of judgments between the DBM and the CSC, petitioner CHREA elevated the matter to the Court of
Appeals. The Court of Appeals affirmed the pronouncement of the CSC-Central Office and upheld the validity of the
upgrading, retitling, and reclassification scheme in the CHR on the justification that such action is within the ambit of
CHRs fiscal autonomy. The fallo of the Court of Appeals decision provides:
IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED and the questioned Civil Service Commission
Resolution No. 99-2800 dated December 16, 1999 as well as No. 001354 dated June 9, 2000, are hereby AFFIRMED. No
cost.[11]
Unperturbed, petitioner filed this petition in this Court contending that:
A.
THE COURT OF APPEALS GRAVELY ERRED WHEN IT HELD THAT UNDER THE 1987 CONSTITUTION, THE COMMISSION ON
HUMAN RIGHTS ENJOYS FISCAL AUTONOMY.
B.
THE COURT OF APPEALS SERIOUSLY ERRED IN UPHOLDING THE CONSTRUCTION OF THE COMMISSION ON HUMAN
RIGHTS OF REPUBLIC ACT NO. 8522 (THE GENERAL APPROPRIATIONS ACT FOR THE FISCAL YEAR 1998) DESPITE ITS BEING
IN SHARP CONFLICT WITH THE 1987 CONSTITUTION AND THE STATUTE ITSELF.
C.
THE COURT OF APPEALS SERIOUSLY AND GRAVELY ERRED IN AFFIRMING THE VALIDITY OF THE CIVIL SERVICE
COMMISSION RESOLUTION NOS. 992800 AND 001354 AS WELL AS THAT OF THE OPINION OF THE DEPARTMENT OF
JUSTICE IN STATING THAT THE COMMISSION ON HUMAN RIGHTS ENJOYS FISCAL AUTONOMY UNDER THE 1987
CONSTITUTION AND THAT THIS FISCAL AUTONOMY INCLUDES THE ACTION TAKEN BY IT IN COLLAPSING, UPGRADING
AND RECLASSIFICATION OF POSITIONS THEREIN.[12]
The central question we must answer in order to resolve this case is: Can the Commission on Human Rights validly
implement an upgrading, reclassification, creation, and collapsing of plantilla positions in the Commission without the
prior approval of the Department of Budget and Management?
292
Petitioner CHREA grouses that the Court of Appeals and the CSC-Central Office both erred in sanctioning the CHRs
alleged blanket authority to upgrade, reclassify, and create positions inasmuch as the approval of the DBM relative to
such scheme is still indispensable. Petitioner bewails that the CSC and the Court of Appeals erroneously assumed that
CHR enjoys fiscal autonomy insofar as financial matters are concerned, particularly with regard to the upgrading and
reclassification of positions therein.
Respondent CHR sharply retorts that petitioner has no locus standi considering that there exists no official written
record in the Commission recognizing petitioner as a bona fide organization of its employees nor is there anything in the
records to show that its president, Marcial A. Sanchez, Jr., has the authority to sue the CHR. The CHR contends that it
has the authority to cause the upgrading, reclassification, plantilla creation, and collapsing scheme sans the approval of
the DBM because it enjoys fiscal autonomy.
After a thorough consideration of the arguments of both parties and an assiduous scrutiny of the records in the case at
bar, it is the Courts opinion that the present petition is imbued with merit.
On petitioners personality to bring this suit, we held in a multitude of cases that a proper party is one who has sustained
or is in immediate danger of sustaining an injury as a result of the act complained of.[13] Here, petitioner, which consists
of rank and file employees of respondent CHR, protests that the upgrading and collapsing of positions benefited only a
select few in the upper level positions in the Commission resulting to the demoralization of the rank and file employees.
This sufficiently meets the injury test. Indeed, the CHRs upgrading scheme, if found to be valid, potentially entails eating
up the Commissions savings or that portion of its budgetary pie otherwise allocated for Personnel Services, from which
the benefits of the employees, including those in the rank and file, are derived.
Further, the personality of petitioner to file this case was recognized by the CSC when it took cognizance of the CHREAs
request to affirm the recommendation of the CSC-National Capital Region Office. CHREAs personality to bring the suit
was a non-issue in the Court of Appeals when it passed upon the merits of this case. Thus, neither should our hands be
tied by this technical concern. Indeed, it is settled jurisprudence that an issue that was neither raised in the complaint
nor in the court below cannot be raised for the first time on appeal, as to do so would be offensive to the basic rules of
fair play, justice, and due process.[14]
We now delve into the main issue of whether or not the approval by the DBM is a condition precedent to the enactment
of an upgrading, reclassification, creation and collapsing of plantilla positions in the CHR.
Germane to our discussion is Rep. Act No. 6758, An Act Prescribing a Revised Compensation and Position Classification
System in the Government and For Other Purposes, or the Salary Standardization Law, dated 01 July 1989, which
provides in Sections 2 and 4 thereof that it is the DBM that shall establish and administer a unified Compensation and
Position Classification System. Thus:
SEC. 2. Statement of Policy. -- It is hereby declared the policy of the State to provide equal pay for substantially equal
work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification
requirements of the positions. In determining rates of pay, due regard shall be given to, among others, prevailing rates
in the private sector for comparable work. For this purpose, the Department of Budget and Management (DBM) is
hereby directed to establish and administer a unified Compensation and Position Classification System, hereinafter
referred to as the System as provided for in Presidential Decree No. 985, as amended, that shall be applied for all
government entities, as mandated by the Constitution. (Emphasis supplied.)
SEC. 4. Coverage. The Compensation and Position Classification System herein provided shall apply to all positions,
appointive or elective, on full or part-time basis, now existing or hereafter created in the government, including
government-owned or controlled corporations and government financial institutions.
The term government refers to the Executive, the Legislative and the Judicial Branches and the Constitutional
Commissions and shall include all, but shall not be limited to, departments, bureaus, offices, boards, commissions,
courts, tribunals, councils, authorities, administrations, centers, institutes, state colleges and universities, local
government units, and the armed forces. The term government-owned or controlled corporations and financial
institutions shall include all corporations and financial institutions owned or controlled by the National Government,
293
whether such corporations and financial institutions perform governmental or proprietary functions. (Emphasis
supplied.)
The disputation of the Court of Appeals that the CHR is exempt from the long arm of the Salary Standardization Law is
flawed considering that the coverage thereof, as defined above, encompasses the entire gamut of government offices,
sans qualification.
This power to administer is not purely ministerial in character as erroneously held by the Court of Appeals. The word to
administer means to control or regulate in behalf of others; to direct or superintend the execution, application or
conduct of; and to manage or conduct public affairs, as to administer the government of the state.[15]
The regulatory power of the DBM on matters of compensation is encrypted not only in law, but in jurisprudence as well.
In the recent case of Philippine Retirement Authority (PRA) v. Jesusito L. Buag,[16] this Court, speaking through Mr.
Justice Reynato Puno, ruled that compensation, allowances, and other benefits received by PRA officials and employees
without the requisite approval or authority of the DBM are unauthorized and irregular. In the words of the Court
Despite the power granted to the Board of Directors of PRA to establish and fix a compensation and benefits scheme for
its employees, the same is subject to the review of the Department of Budget and Management. However, in view of the
express powers granted to PRA under its charter, the extent of the review authority of the Department of Budget and
Management is limited. As stated in Intia, the task of the Department of Budget and Management is simply to review
the compensation and benefits plan of the government agency or entity concerned and determine if the same complies
with the prescribed policies and guidelines issued in this regard. The role of the Department of Budget and Management
is supervisorial in nature, its main duty being to ascertain that the proposed compensation, benefits and other
incentives to be given to PRA officials and employees adhere to the policies and guidelines issued in accordance with
applicable laws.
In Victorina Cruz v. Court of Appeals,[17] we held that the DBM has the sole power and discretion to administer the
compensation and position classification system of the national government.
In Intia, Jr. v. Commission on Audit,[18] the Court held that although the charter[19] of the Philippine Postal Corporation
(PPC) grants it the power to fix the compensation and benefits of its employees and exempts PPC from the coverage of
the rules and regulations of the Compensation and Position Classification Office, by virtue of Section 6 of P.D. No. 1597,
the compensation system established by the PPC is, nonetheless, subject to the review of the DBM. This Court intoned:
It should be emphasized that the review by the DBM of any PPC resolution affecting the compensation structure of its
personnel should not be interpreted to mean that the DBM can dictate upon the PPC Board of Directors and deprive the
latter of its discretion on the matter. Rather, the DBMs function is merely to ensure that the action taken by the Board
of Directors complies with the requirements of the law, specifically, that PPCs compensation system conforms as closely
as possible with that provided for under R.A. No. 6758. (Emphasis supplied.)
As measured by the foregoing legal and jurisprudential yardsticks, the imprimatur of the DBM must first be sought prior
to implementation of any reclassification or upgrading of positions in government. This is consonant to the mandate of
the DBM under the Revised Administrative Code of 1987, Section 3, Chapter 1, Title XVII, to wit:
SEC. 3. Powers and Functions. The Department of Budget and Management shall assist the President in the preparation
of a national resources and expenditures budget, preparation, execution and control of the National Budget, preparation
and maintenance of accounting systems essential to the budgetary process, achievement of more economy and
efficiency in the management of government operations, administration of compensation and position classification
systems, assessment of organizational effectiveness and review and evaluation of legislative proposals having budgetary
or organizational implications. (Emphasis supplied.)
Irrefragably, it is within the turf of the DBM Secretary to disallow the upgrading, reclassification, and creation of
additional plantilla positions in the CHR based on its finding that such scheme lacks legal justification.
294
Notably, the CHR itself recognizes the authority of the DBM to deny or approve the proposed reclassification of positions
as evidenced by its three letters to the DBM requesting approval thereof. As such, it is now estopped from now claiming
that the nod of approval it has previously sought from the DBM is a superfluity.
The Court of Appeals incorrectly relied on the pronouncement of the CSC-Central Office that the CHR is a constitutional
commission, and as such enjoys fiscal autonomy.[20]
Palpably, the Court of Appeals Decision was based on the mistaken premise that the CHR belongs to the species of
constitutional commissions. But, Article IX of the Constitution states in no uncertain terms that only the CSC, the
Commission on Elections, and the Commission on Audit shall be tagged as Constitutional Commissions with the
appurtenant right to fiscal autonomy. Thus:
Sec. 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission
on Elections, and the Commission on Audit.
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and
regularly released.
Along the same vein, the Administrative Code, in Chapter 5, Sections 24 and 26 of Book II on Distribution of Powers of
Government, the constitutional commissions shall include only the Civil Service Commission, the Commission on
Elections, and the Commission on Audit, which are granted independence and fiscal autonomy. In contrast, Chapter 5,
Section 29 thereof, is silent on the grant of similar powers to the other bodies including the CHR. Thus:
SEC. 24. Constitutional Commissions. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.
SEC. 26. Fiscal Autonomy. The Constitutional Commissions shall enjoy fiscal autonomy. The approved annual
appropriations shall be automatically and regularly released.
SEC. 29. Other Bodies. There shall be in accordance with the Constitution, an Office of the Ombudsman, a Commission
on Human Rights, and independent central monetary authority, and a national police commission. Likewise, as provided
in the Constitution, Congress may establish an independent economic and planning agency. (Emphasis ours.)
From the 1987 Constitution and the Administrative Code, it is abundantly clear that the CHR is not among the class of
Constitutional Commissions. As expressed in the oft-repeated maxim expressio unius est exclusio alterius, the express
mention of one person, thing, act or consequence excludes all others. Stated otherwise, expressium facit cessare
tacitum what is expressed puts an end to what is implied.[21]
Nor is there any legal basis to support the contention that the CHR enjoys fiscal autonomy. In essence, fiscal autonomy
entails freedom from outside control and limitations, other than those provided by law. It is the freedom to allocate and
utilize funds granted by law, in accordance with law, and pursuant to the wisdom and dispatch its needs may require
from time to time.[22] In Blaquera v. Alcala and Bengzon v. Drilon,[23] it is understood that it is only the Judiciary, the
Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman,
which enjoy fiscal autonomy. Thus, in Bengzon,[24] we explained:
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full
flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the
power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates
authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be
provided by law or prescribed by them in the course of the discharge of their functions.
...
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed
in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the
295
independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme
Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.
In the interest of comity and cooperation, the Supreme Court, [the] Constitutional Commissions, and the Ombudsman
have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of
autonomy should cease to be a meaningless provision. (Emphasis supplied.)
Neither does the fact that the CHR was admitted as a member by the Constitutional Fiscal Autonomy Group (CFAG) ipso
facto clothed it with fiscal autonomy. Fiscal autonomy is a constitutional grant, not a tag obtainable by membership.
We note with interest that the special provision under Rep. Act No. 8522, while cited under the heading of the CHR, did
not specifically mention CHR as among those offices to which the special provision to formulate and implement
organizational structures apply, but merely states its coverage to include Constitutional Commissions and Offices
enjoying fiscal autonomy. In contrast, the Special Provision Applicable to the Judiciary under Article XXVIII of the General
Appropriations Act of 1998 specifically mentions that such special provision applies to the judiciary and had categorically
authorized the Chief Justice of the Supreme Court to formulate and implement the organizational structure of the
Judiciary, to wit:
1. Organizational Structure. Any provision of law to the contrary notwithstanding and within the limits of their respective
appropriations authorized in this Act, the Chief Justice of the Supreme Court is authorized to formulate and implement
organizational structure of the Judiciary, to fix and determine the salaries, allowances, and other benefits of their
personnel, and whenever public interest so requires, make adjustments in the personal services itemization including,
but not limited to, the transfer of item or creation of new positions in the Judiciary; PROVIDED, That officers and
employees whose positions are affected by such reorganization or adjustments shall be granted retirement gratuities
and separation pay in accordance with existing law, which shall be payable from any unexpended balance of, or savings
in the appropriations of their respective offices: PROVIDED, FURTHER, That the implementation hereof shall be in
accordance with salary rates, allowances and other benefits authorized under compensation standardization laws.
(Emphasis supplied.)
All told, the CHR, although admittedly a constitutional creation is, nonetheless, not included in the genus of offices
accorded fiscal autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal autonomy, we share the stance of the DBM that the grant of fiscal
autonomy notwithstanding, all government offices must, all the same, kowtow to the Salary Standardization Law. We
are of the same mind with the DBM on its standpoint, thus-
Being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and
create positions without approval of the DBM. While the members of the Group are authorized to formulate and
implement the organizational structures of their respective offices and determine the compensation of their personnel,
such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and
Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law.[25]
(Emphasis supplied.)
The most lucid argument against the stand of respondent, however, is the provision of Rep. Act No. 8522 that the
implementation hereof shall be in accordance with salary rates, allowances and other benefits authorized under
compensation standardization laws.[26]
Indeed, the law upon which respondent heavily anchors its case upon has expressly provided that any form of
adjustment in the organizational structure must be within the parameters of the Salary Standardization Law.
The Salary Standardization Law has gained impetus in addressing one of the basic causes of discontent of many civil
servants.[27] For this purpose, Congress has delegated to the DBM the power to administer the Salary Standardization
Law and to ensure that the spirit behind it is observed. This power is part of the system of checks and balances or system
of restraints in our government. The DBMs exercise of such authority is not in itself an arrogation inasmuch as it is
pursuant to the paramount law of the land, the Salary Standardization Law and the Administrative Code.
296
In line with its role to breathe life into the policy behind the Salary Standardization Law of providing equal pay for
substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and
qualification requirements of the positions, the DBM, in the case under review, made a determination, after a thorough
evaluation, that the reclassification and upgrading scheme proposed by the CHR lacks legal rationalization.
The DBM expounded that Section 78 of the general provisions of the General Appropriations Act FY 1998, which the CHR
heavily relies upon to justify its reclassification scheme, explicitly provides that no organizational unit or changes in key
positions shall be authorized unless provided by law or directed by the President. Here, the DBM discerned that there is
no law authorizing the creation of a Finance Management Office and a Public Affairs Office in the CHR. Anent CHRs
proposal to upgrade twelve positions of Attorney VI, SG-26 to Director IV, SG-28, and four positions of Director III, SG-27
to Director IV, SG-28, in the Central Office, the DBM denied the same as this would change the context from support to
substantive without actual change in functions.
This view of the DBM, as the laws designated body to implement and administer a unified compensation system, is
beyond cavil. The interpretation of an administrative government agency, which is tasked to implement a statute is
accorded great respect and ordinarily controls the construction of the courts. In Energy Regulatory Board v. Court of
Appeals,[28] we echoed the basic rule that the courts will not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the regulation of activities coming under the special technical
knowledge and training of such agencies.
To be sure, considering his expertise on matters affecting the nations coffers, the Secretary of the DBM, as the
Presidents alter ego, knows from where he speaks inasmuch as he has the front seat view of the adverse effects of an
unwarranted upgrading or creation of positions in the CHR in particular and in the entire government in general.
WHEREFORE, the petition is GRANTED, the Decision dated 29 November 2001 of the Court of Appeals in CA-G.R. SP No.
59678 and its Resolution dated 11 September 2002 are hereby REVERSED and SET ASIDE. The ruling dated 29 March
1999 of the Civil Service Commision-National Capital Region is REINSTATED. The Commission on Human Rights
Resolution No. A98-047 dated 04 September 1998, Resolution No. A98-055 dated 19 October 1998 and Resolution No.
A98-062 dated 17 November 1998 without the approval of the Department of Budget and Management are disallowed.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 113375 May 5, 1994
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T.
APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G.
FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO
TAADA, and REP. JOKER P. ARROYO, petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office of the President; RENATO CORONA, in his
capacity as Assistant Executive Secretary and Chairman of the Presidential review Committee on the Lotto, Office of the
President; PHILIPPINE CHARITY SWEEPSTAKES OFFICE; and PHILIPPINE GAMING MANAGEMENT CORPORATION,
respondents.
Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. Gozon for petitioners.
Renato L. Cayetano and Eleazar B. Reyes for PGMC.
Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.
DAVIDE, JR., J.:
297
This is a special civil action for prohibition and injunction, with a prayer for a temporary restraining order and
preliminary injunction, which seeks to prohibit and restrain the implementation of the "Contract of Lease" executed by
the Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC) in
connection with the on- line lottery system, also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic corporation composed of civic-
spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the cause of truth, justice, and national
renewal. The rest of the petitioners, except Senators Freddie Webb and Wigberto Taada and Representative Joker P.
Arroyo, are suing in their capacities as members of the Board of Trustees of KILOSBAYAN and as taxpayers and
concerned citizens. Senators Webb and Taada and Representative Arroyo are suing in their capacities as members of
Congress and as taxpayers and concerned citizens of the Philippines.
The pleadings of the parties disclose the factual antecedents which triggered off the filing of this petition.
Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg. 42) which grants it the authority
to hold and conduct "charity sweepstakes races, lotteries and other similar activities," the PCSO decided to establish an
on- line lottery system for the purpose of increasing its revenue base and diversifying its sources of funds. Sometime
before March 1993, after learning that the PCSO was interested in operating an on-line lottery system, the Berjaya
Group Berhad, "a multinational company and one of the ten largest public companies in Malaysia," long "engaged in,
among others, successful lottery operations in Asia, running both Lotto and Digit games, thru its subsidiary, Sports Toto
Malaysia," with its "affiliate, the International Totalizator Systems, Inc., . . . an American public company engaged in the
international sale or provision of computer systems, softwares, terminals, training and other technical services to the
gaming industry," "became interested to offer its services and resources to PCSO." As an initial step, Berjaya Group
Berhad (through its individual nominees) organized with some Filipino investors in March 1993 a Philippine corporation
known as the Philippine Gaming Management Corporation (PGMC), which "was intended to be the medium through
which the technical and management services required for the project would be offered and delivered to PCSO." 1
Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease Contract of an on-line lottery
system for the PCSO. 2 Relevant provisions of the RFP are the following:
1. EXECUTIVE SUMMARY
xxx xxx xxx
1.2. PCSO is seeking a suitable contractor which shall build, at its own expense, all the facilities ('Facilities') needed to
operate and maintain a nationwide on-line lottery system. PCSO shall lease the Facilities for a fixed percentage
ofquarterly gross receipts. All receipts from ticket sales shall be turned over directly to PCSO. All capital, operating
expenses and expansion expenses and risks shall be for the exclusive account of the Lessor.
xxx xxx xxx
1.4. The lease shall be for a period not exceeding fifteen (15) years.
1.5. The Lessor is expected to submit a comprehensive nationwide lottery development plan ("Development Plan")
which will include the game, the marketing of the games, and the logistics to introduce the games to all the cities and
municipalities of the country within five (5) years.
xxx xxx xxx
1.7. The Lessor shall be selected based on its technical expertise, hardware and software capability, maintenance
support, and financial resources. The Development Plan shall have a substantial bearing on the choice of the Lessor. The
Lessor shall be a domestic corporation, with at least sixty percent (60%) of its shares owned by Filipino shareholders.
xxx xxx xxx
298
The Office of the President, the National Disaster Control Coordinating Council, the Philippine National Police, and the
National Bureau of Investigation shall be authorized to use the nationwide telecommunications system of the Facilities
Free of Charge.
1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO without any additional consideration. 3
xxx xxx xxx
2.2. OBJECTIVES
The objectives of PCSO in leasing the Facilities from a private entity are as follows:
xxx xxx xxx
2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no expense or risk to the government.
xxx xxx xxx
2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR
xxx xxx xxx
2.4.2. THE LESSOR
The Proponent is expected to furnish and maintain the Facilities, including the personnel needed to operate the
computers, the communications network and sales offices under a build-lease basis. The printing of tickets shall be
undertaken under the supervision and control of PCSO. The Facilities shall enable PCSO to computerize the entire
gaming system.
The Proponent is expected to formulate and design consumer-oriented Master Games Plan suited to the marketplace,
especially geared to Filipino gaming habits and preferences. In addition, the Master Games Plan is expected to include a
Product Plan for each game and explain how each will be introduced into the market. This will be an integral part of the
Development Plan which PCSO will require from the Proponent.
xxx xxx xxx
The Proponent is expected to provide upgrades to modernize the entire gaming system over the life ofthe lease
contract.
The Proponent is expected to provide technology transfer to PCSO technical personnel. 4
7. GENERAL GUIDELINES FOR PROPONENTS
xxx xxx xxx
Finally, the Proponent must be able to stand the acid test of proving that it is an entity able to take on the role of
responsible maintainer of the on-line lottery system, and able to achieve PSCO's goal of formalizing an on-line lottery
system to achieve its mandated objective. 5
xxx xxx xxx
16. DEFINITION OF TERMS
Facilities: All capital equipment, computers, terminals, software, nationwide telecommunication network, ticket sales
offices, furnishings, and fixtures; printing costs; cost of salaries and wages; advertising and promotion expenses;
299
maintenance costs; expansion and replacement costs; security and insurance, and all other related expenses needed to
operate nationwide on-line lottery system. 6
Considering the above citizenship requirement, the PGMC claims that the Berjaya Group "undertook to reduce its equity
stakes in PGMC to 40%," by selling 35% out of the original 75% foreign stockholdings to local investors.
On 15 August 1993, PGMC submitted its bid to the PCSO. 7
The bids were evaluated by the Special Pre-Qualification Bids and Awards Committee (SPBAC) for the on-line lottery and
its Bid Report was thereafter submitted to the Office of the President. 8 The submission was preceded by complaints by
the Committee's Chairperson, Dr. Mita Pardo de Tavera. 9
On 21 October 1993, the Office of the President announced that it had given the respondent PGMC the go-signal to
operate the country's on-line lottery system and that the corresponding implementing contract would be submitted not
later than 8 November 1993 "for final clearance and approval by the Chief Executive." 10 This announcement was
published in the Manila Standard, Philippine Daily Inquirer, and the Manila Times on 29 October 1993. 11
On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel V. Ramos strongly opposing the setting up to
the on-line lottery system on the basis of serious moral and ethical considerations. 12
At the meeting of the Committee on Games and Amusements of the Senate on 12 November 1993, KILOSBAYAN
reiterated its vigorous opposition to the on-line lottery on account of its immorality and illegality. 13
On 19 November 1993, the media reported that despite the opposition, "Malacaang will push through with the
operation of an on-line lottery system nationwide" and that it is actually the respondent PCSO which will operate the
lottery while the winning corporate bidders are merely "lessors." 14
On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the lottery award from Executive
Secretary Teofisto Guingona, Jr. In his answer of 17 December 1993, the Executive Secretary informed KILOSBAYAN that
the requested documents would be duly transmitted before the end of the month. 15. However, on that same date, an
agreement denominated as "Contract of Lease" was finally executed by respondent PCSO and respondent PGMC. 16 The
President, per the press statement issued by the Office of the President, approved it on 20 December 1993. 17
In view of their materiality and relevance, we quote the following salient provisions of the Contract of Lease:
1. DEFINITIONS
The following words and terms shall have the following respective meanings:
1.1 Rental Fee Amount to be paid by PCSO to the LESSOR as compensation for the fulfillment of the obligations of
the LESSOR under this Contract, including, but not limited to the lease of the Facilities.
xxx xxx xxx
1.3 Facilities All capital equipment, computers, terminals, software (including source codes for the On-Line
Lottery application software for the terminals, telecommunications and central systems), technology, intellectual
property rights, telecommunications network, and furnishings and fixtures.
1.4 Maintenance and Other Costs All costs and expenses relating to printing, manpower, salaries and wages,
advertising and promotion, maintenance, expansion and replacement, security and insurance, and all other related
expenses needed to operate an On-Line Lottery System, which shall be for the account of the LESSOR. All expenses
relating to the setting-up, operation and maintenance of ticket sales offices of dealers and retailers shall be borne by
PCSO's dealers and retailers.
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1.5 Development Plan The detailed plan of all games, the marketing thereof, number of players, value of
winnings and the logistics required to introduce the games, including the Master Games Plan as approved by PCSO,
attached hereto as Annex "A", modified as necessary by the provisions of this Contract.
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1.8 Escrow Deposit The proposal deposit in the sum of Three Hundred Million Pesos (P300,000,000.00) submitted
by the LESSOR to PCSO pursuant to the requirements of the Request for Proposals.
2. SUBJECT MATTER OF THE LEASE
The LESSOR shall build, furnish and maintain at its own expense and risk the Facilities for the On-Line Lottery System of
PCSO in the Territory on an exclusive basis. The LESSOR shall bear all Maintenance and Other Costs as defined herein.
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3. RENTAL FEE
For and in consideration of the performance by the LESSOR of its obligations herein, PCSO shall pay LESSOR a fixed
Rental Fee equal to four point nine percent (4.9%) of gross receipts from ticket sales, payable net of taxes required by
law to be withheld, on a semi-monthly basis. Goodwill, franchise and similar fees shall belong to PCSO.
4. LEASE PERIOD
The period of the lease shall commence ninety (90) days from the date of effectivity of this Contract and shall run for a
period of eight (8) years thereafter, unless sooner terminated in accordance with this Contract.
5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE LOTTERY SYSTEM
PCSO shall be the sole and individual operator of the On-Line Lottery System. Consequently:
5.1 PCSO shall have sole responsibility to decide whether to implement, fully or partially, the Master Games Plan of
the LESSOR. PCSO shall have the sole responsibility to determine the time for introducing new games to the market. The
Master Games Plan included in Annex "A" hereof is hereby approved by PCSO.
5.2 PCSO shall have control over revenues and receipts of whatever nature from the On-Line Lottery System. After
paying the Rental Fee to the LESSOR, PCSO shall have exclusive responsibility to determine the Revenue Allocation Plan;
Provided, that the same shall be consistent with the requirement of R.A. No. 1169, as amended, which fixes a prize fund
of fifty five percent (55%) on the average.
5.3 PCSO shall have exclusive control over the printing of tickets, including but not limited to the design, text, and
contents thereof.
5.4 PCSO shall have sole responsibility over the appointment of dealers or retailers throughout the country. PCSO
shall appoint the dealers and retailers in a timely manner with due regard to the implementation timetable of the On-
Line Lottery System. Nothing herein shall preclude the LESSOR from recommending dealers or retailers for appointment
by PCSO, which shall act on said recommendation within forty-eight (48) hours.
5.5 PCSO shall designate the necessary personnel to monitor and audit the daily performance of the On-Line Lottery
System. For this purpose, PCSO designees shall be given, free of charge, suitable and adequate space, furniture and
fixtures, in all offices of the LESSOR, including but not limited to its headquarters, alternate site, regional and area
offices.
5.6 PCSO shall have the responsibility to resolve, and exclusive jurisdiction over, all matters involving the operation
of the On-Line Lottery System not otherwise provided in this Contract.
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5.7 PCSO shall promulgate procedural and coordinating rules governing all activities relating to the On-Line Lottery
System.
5.8 PCSO will be responsible for the payment of prize monies, commissions to agents and dealers, and taxes and
levies (if any) chargeable to the operator of the On-Line Lottery System. The LESSOR will bear all other Maintenance and
Other Costs, except as provided in Section 1.4.
5.9 PCSO shall assist the LESSOR in the following:
5.9.1 Work permits for the LESSOR's staff;
5.9.2 Approvals for importation of the Facilities;
5.9.3 Approvals and consents for the On-Line Lottery System; and
5.9.4 Business and premises licenses for all offices of the LESSOR and licenses for the telecommunications network.
5.10 In the event that PCSO shall pre-terminate this Contract or suspend the operation of the On-Line Lottery System,
in breach of this Contract and through no fault of the LESSOR, PCSO shall promptly, and in any event not later than sixty
(60) days, reimburse the LESSOR the amount of its total investment cost associated with the On-Line Lottery System,
including but not limited to the cost of the Facilities, and further compensate the LESSOR for loss of expected net profit
after tax, computed over the unexpired term of the lease.
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR
The LESSOR is one of not more than three (3) lessors of similar facilities for the nationwide On-Line Lottery System of
PCSO. It is understood that the rights of the LESSOR are primarily those of a lessor of the Facilities, and consequently, all
rights involving the business aspects of the use of the Facilities are within the jurisdiction of PCSO. During the term of
the lease, the LESSOR shall.
6.1 Maintain and preserve its corporate existence, rights and privileges, and conduct its business in an orderly,
efficient, and customary manner.
6.2 Maintain insurance coverage with insurers acceptable to PCSO on all Facilities.
6.3 Comply with all laws, statues, rules and regulations, orders and directives, obligations and duties by which it is
legally bound.
6.4 Duly pay and discharge all taxes, assessments and government charges now and hereafter imposed of whatever
nature that may be legally levied upon it.
6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade, replace and improve the Facilities from
time to time as new technology develops, in order to make the On-Line Lottery System more cost-effective and/or
competitive, and as may be required by PCSO shall not impose such requirements unreasonably nor arbitrarily.
6.6 Provide PCSO with management terminals which will allow real-time monitoring of the On-Line Lottery System.
6.7 Upon effectivity of this Contract, commence the training of PCSO and other local personnel and the transfer of
technology and expertise, such that at the end of the term of this Contract, PCSO will be able to effectively take-over the
Facilities and efficiently operate the On-Line Lottery System.
6.8 Undertake a positive advertising and promotions campaign for both institutional and product lines without
engaging in negative advertising against other lessors.
6.9 Bear all expenses and risks relating to the Facilities including, but not limited to, Maintenance and Other Costs
and:
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6.10 Bear all risks if the revenues from ticket sales, on an annualized basis, are insufficient to pay the entire prize
money.
6.11 Be, and is hereby, authorized to collect and retain for its own account, a security deposit from dealers and
retailers, in an amount determined with the approval of PCSO, in respect of equipment supplied by the LESSOR. PCSO's
approval shall not be unreasonably withheld.
xxx xxx xxx
6.12 Comply with procedural and coordinating rules issued by PCSO.
7. REPRESENTATIONS AND WARRANTIES
The LESSOR represents and warrants that:
7.1 The LESSOR is corporation duly organized and existing under the laws of the Republic of the Philippines, at least
sixty percent (60%) of the outstanding capital stock of which is owned by Filipino shareholders. The minimum required
Filipino equity participation shall not be impaired through voluntary or involuntary transfer, disposition, or sale of shares
of stock by the present stockholders.
7.2 The LESSOR and its Affiliates have the full corporate and legal power and authority to own and operate their
properties and to carry on their business in the place where such properties are now or may be conducted. . . .
7.3 The LESSOR has or has access to all the financing and funding requirements to promptly and effectively carry out
the terms of this Contract. . . .
7.4 The LESSOR has or has access to all the managerial and technical expertise to promptly and effectively carry out
the terms of this Contract. . . .
xxx xxx xxx
10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications network that will connect all municipalities and cities in the Territory in
accordance with, at the LESSOR's option, either of the LESSOR's proposals (or a combinations of both such proposals)
attached hereto as Annex "B," and under the following PCSO schedule:
xxx xxx xxx
PCSO may, at its option, require the LESSOR to establish the telecommunications network in accordance with the above
Timetable in provinces where the LESSOR has not yet installed terminals. Provided, that such provinces have existing
nodes. Once a municipality or city is serviced by land lines of a licensed public telephone company, and such lines are
connected to Metro Manila, then the obligation of the LESSOR to connect such municipality or city through a
telecommunications network shall cease with respect to such municipality or city. The voice facility will cover the four
offices of the Office of the President, National Disaster Control Coordinating Council, Philippine National Police and the
National Bureau of Investigation, and each city and municipality in the Territory except Metro Manila, and those cities
and municipalities which have easy telephone access from these four offices. Voice calls from the four offices shall be
transmitted via radio or VSAT to the remote municipalities which will be connected to this voice facility through wired
network or by radio. The facility shall be designed to handle four private conversations at any one time.
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13. STOCK DISPERSAL PLAN

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Within two (2) years from the effectivity of this Contract, the LESSOR shall cause itself to be listed in the local stock
exchange and offer at least twenty five percent (25%) of its equity to the public.
14. NON-COMPETITION
The LESSOR shall not, directly or indirectly, undertake any activity or business in competition with or adverse to the On-
Line Lottery System of PCSO unless it obtains the latter's prior written consent thereto.
15. HOLD HARMLESS CLAUSE
15.1 The LESSOR shall at all times protect and defend, at its cost and expense, PCSO from and against any and all
liabilities and claims for damages and/or suits for or by reason of any deaths of, or any injury or injuries to any person or
persons, or damages to property of any kind whatsoever, caused by the LESSOR, its subcontractors, its authorized agents
or employees, from any cause or causes whatsoever.
15.2 The LESSOR hereby covenants and agrees to indemnify and hold PCSO harmless from all liabilities, charges,
expenses (including reasonable counsel fees) and costs on account of or by reason of any such death or deaths, injury or
injuries, liabilities, claims, suits or losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR shall at all times protect and defend, at its own cost and expense, its title to the facilities and PCSO's
interest therein from and against any and all claims for the duration of the Contract until transfer to PCSO of ownership
of the serviceable Facilities.
16. SECURITY
16.1 To ensure faithful compliance by the LESSOR with the terms of the Contract, the LESSOR shall secure a
Performance Bond from a reputable insurance company or companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial amount of Three Hundred Million Pesos (P300,000,000.00), to its
U.S. dollar equivalent, and shall be renewed to cover the duration of the Contract. However, the Performance Bond shall
be reduced proportionately to the percentage of unencumbered terminals installed; Provided, that the Performance
Bond shall in no case be less than One Hundred Fifty Million Pesos (P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow Deposit as the Performance Bond. . . .
17. PENALTIES
17.1 Except as may be provided in Section 17.2, should the LESSOR fail to take remedial measures within seven (7)
days, and rectify the breach within thirty (30) days, from written notice by PCSO of any wilfull or grossly negligent
violation of the material terms and conditions of this Contract, all unencumbered Facilities shall automatically become
the property of PCSO without consideration and without need for further notice or demand by PCSO. The Performance
Bond shall likewise be forfeited in favor of PCSO.
17.2 Should the LESSOR fail to comply with the terms of the Timetables provided in Section 9 and 10, it shall be
subject to an initial Penalty of Twenty Thousand Pesos (P20,000.00), per city or municipality per every month of delay;
Provided, that the Penalty shall increase, every ninety (90) days, by the amount of Twenty Thousand Pesos (P20,000.00)
per city or municipality per month, whilst shall failure to comply persists. The penalty shall be deducted by PCSO from
the rental fee.
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20. OWNERSHIP OF THE FACILITIES
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After expiration of the term of the lease as provided in Section 4, the Facilities directly required for the On-Line Lottery
System mentioned in Section 1.3 shall automatically belong in full ownership to PCSO without any further consideration
other than the Rental Fees already paid during the effectivity of the lease.
21. TERMINATION OF THE LEASE
PCSO may terminate this Contract for any breach of the material provisions of this Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops or suspends or threatens to stop or
suspend payment of all or a material part of its debts, or proposes or makes a general assignment or an arrangement or
compositions with or for the benefit of its creditors; or
21.2 An order is made or an effective resolution passed for the winding up or dissolution of the LESSOR or when it
ceases or threatens to cease to carry on all or a material part of its operations or business; or
21.3 Any material statement, representation or warranty made or furnished by the LESSOR proved to be materially
false or misleading;
said termination to take effect upon receipt of written notice of termination by the LESSOR and failure to take remedial
action within seven (7) days and cure or remedy the same within thirty (30) days from notice.
Any suspension, cancellation or termination of this Contract shall not relieve the LESSOR of any liability that may have
already accrued hereunder.
xxx xxx xxx
Considering the denial by the Office of the President of its protest and the statement of Assistant Executive Secretary
Renato Corona that "only a court injunction can stop Malacaang," and the imminent implementation of the Contract of
Lease in February 1994, KILOSBAYAN, with its co-petitioners, filed on 28 January 1994 this petition.
In support of the petition, the petitioners claim that:
. . . X X THE OFFICE OF THE PRESIDENT, ACTING THROUGH RESPONDENTS EXECUTIVE SECRETARY AND/OR ASSISTANT
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, AND THE PCSO GRAVELY ABUSE[D] THEIR DISCRETION AND/OR FUNCTIONS
TANTAMOUNT TO LACK OF JURISDICTION AND/OR AUTHORITY IN RESPECTIVELY: (A) APPROVING THE AWARD OF THE
CONTRACT TO, AND (B) ENTERING INTO THE SO-CALLED "CONTRACT OF LEASE" WITH, RESPONDENT PGMC FOR THE
INSTALLATION, ESTABLISHMENT AND OPERATION OF THE ON-LINE LOTTERY AND TELECOMMUNICATION SYSTEMS
REQUIRED AND/OR AUTHORIZED UNDER THE SAID CONTRACT, CONSIDERING THAT:
a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited from holding and conducting lotteries "in
collaboration, association or joint venture with any person, association, company or entity";
b) Under Act No. 3846 and established jurisprudence, a Congressional franchise is required before any person may
be allowed to establish and operate said telecommunications system;
c) Under Section 11, Article XII of the Constitution, a less than 60% Filipino-owned and/or controlled corporation,
like the PGMC, is disqualified from operating a public service, like the said telecommunications system; and
d) Respondent PGMC is not authorized by its charter and under the Foreign Investment Act (R.A. No. 7042) to
install, establish and operate the on-line lotto and telecommunications systems. 18
Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease with the PGMC because it is an
arrangement wherein the PCSO would hold and conduct the on-line lottery system in "collaboration" or "association"
with the PGMC, in violation of Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from
holding and conducting charity sweepstakes races, lotteries, and other similar activities "in collaboration, association or
joint venture with any person, association, company or entity, foreign or domestic." Even granting arguendo that a lease
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of facilities is not within the contemplation of "collaboration" or "association," an analysis, however, of the Contract of
Lease clearly shows that there is a "collaboration, association, or joint venture between respondents PCSO and PGMC in
the holding of the On-Line Lottery System," and that there are terms and conditions of the Contract "showing that
respondent PGMC is the actual lotto operator and not respondent PCSO." 19
The petitioners also point out that paragraph 10 of the Contract of Lease requires or authorizes PGMC to establish a
telecommunications network that will connect all the municipalities and cities in the territory. However, PGMC cannot
do that because it has no franchise from Congress to construct, install, establish, or operate the network pursuant to
Section 1 of Act No. 3846, as amended. Moreover, PGMC is a 75% foreign-owned or controlled corporation and cannot,
therefore, be granted a franchise for that purpose because of Section 11, Article XII of the 1987 Constitution.
Furthermore, since "the subscribed foreign capital" of the PGMC "comes to about 75%, as shown by paragraph EIGHT of
its Articles of Incorporation," it cannot lawfully enter into the contract in question because all forms of gambling and
lottery is one of them are included in the so-called foreign investments negative list under the Foreign Investments
Act (R.A. No. 7042) where only up to 40% foreign capital is allowed. 20
Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it to establish and operate an
on-line lottery and telecommunications systems. 21
Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of preliminary injunction
commanding the respondents or any person acting in their places or upon their instructions to cease and desist from
implementing the challenged Contract of Lease and, after hearing the merits of the petition, that we render judgment
declaring the Contract of Lease void and without effect and making the injunction permanent. 22
We required the respondents to comment on the petition.
In its Comment filed on 1 March 1994, private respondent PGMC asserts that "(1) [it] is merely an independent
contractor for a piece of work, (i.e., the building and maintenance of a lottery system to be used by PCSO in the
operation of its lottery franchise); and (2) as such independent contractor, PGMC is not a co-operator of the lottery
franchise with PCSO, nor is PCSO sharing its franchise, 'in collaboration, association or joint venture' with PGMC as
such statutory limitation is viewed from the context, intent, and spirit of Republic Act 1169, as amended by Batas
Pambansa 42." It further claims that as an independent contractor for a piece of work, it is neither engaged in
"gambling" nor in "public service" relative to the telecommunications network, which the petitioners even consider as
an "indispensable requirement" of an on-line lottery system. Finally, it states that the execution and implementation of
the contract does not violate the Constitution and the laws; that the issue on the "morality" of the lottery franchise
granted to the PCSO is political and not judicial or legal, which should be ventilated in another forum; and that the
"petitioners do not appear to have the legal standing or real interest in the subject contract and in obtaining the reliefs
sought." 23
In their Comment filed by the Office of the Solicitor General, public respondents Executive Secretary Teofisto Guingona,
Jr., Assistant Executive Secretary Renato Corona, and the PCSO maintain that the contract of lease in question does not
violate Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and that the petitioner's interpretation of the phrase "in
collaboration, association or joint venture" in Section 1 is "much too narrow, strained and utterly devoid of logic" for it
"ignores the reality that PCSO, as a corporate entity, is vested with the basic and essential prerogative to enter into all
kinds of transactions or contracts as may be necessary for the attainment of its purposes and objectives." What the
PCSO charter "seeks to prohibit is that arrangement akin to a "joint venture" or partnership where there is "community
of interest in the business, sharing of profits and losses, and a mutual right of control," a characteristic which does not
obtain in a contract of lease." With respect to the challenged Contract of Lease, the "role of PGMC is limited to that of a
lessor of the facilities" for the on-line lottery system; in "strict technical and legal sense," said contract "can be
categorized as a contract for a piece of work as defined in Articles 1467, 1713 and 1644 of the Civil Code."
They further claim that the establishment of the telecommunications system stipulated in the Contract of Lease does
not require a congressional franchise because PGMC will not operate a public utility; moreover, PGMC's "establishment
of a telecommunications system is not intended to establish a telecommunications business," and it has been held that
where the facilities are operated "not for business purposes but for its own use," a legislative franchise is not required
before a certificate of public convenience can be granted. 24 Even granting arguendo that PGMC is a public utility,
pursuant to Albano S.
306
Reyes, 25 "it can establish a telecommunications system even without a legislative franchise because not every public
utility is required to secure a legislative franchise before it could establish, maintain, and operate the service"; and, in
any case, "PGMC's establishment of the telecommunications system stipulated in its contract of lease with PCSO falls
within the exceptions under Section 1 of Act No. 3846 where a legislative franchise is not necessary for the
establishment of radio stations."
They also argue that the contract does not violate the Foreign Investment Act of 1991; that the Articles of Incorporation
of PGMC authorize it to enter into the Contract of Lease; and that the issues of "wisdom, morality and propriety of acts
of the executive department are beyond the ambit of judicial review."
Finally, the public respondents allege that the petitioners have no standing to maintain the instant suit, citing our
resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 26
Several parties filed motions to intervene as petitioners in this case, 27 but only the motion of Senators Alberto Romulo,
Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo, Vicente Sotto III, John Osmea, Ramon Revilla, and Jose
Lina 28 was granted, and the respondents were required to comment on their petition in intervention, which the public
respondents and PGMC did.
In the meantime, the petitioners filed with the Securities and Exchange Commission on 29 March 1994 a petition against
PGMC for the nullification of the latter's General Information Sheets. That case, however, has no bearing in this petition.
On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to consider the matter submitted for
resolution and pending resolution of the major issues in this case, to issue a temporary restraining order commanding
the respondents or any person acting in their place or upon their instructions to cease and desist from implementing the
challenged Contract of Lease.
In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a) the locus standi of the
petitioners, and (b) the legality and validity of the Contract of Lease in the light of Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries "in collaboration, association
or joint venture with any person, association, company or entity, whether domestic or foreign." On the first issue, seven
Justices voted to sustain the locus standi of the petitioners, while six voted not to. On the second issue, the seven
Justices were of the opinion that the Contract of Lease violates the exception to Section 1(B) of R.A. No. 1169, as
amended by B.P. Blg. 42, and is, therefore, invalid and contrary to law. The six Justices stated that they wished to
express no opinion thereon in view of their stand on the first issue. The Chief Justice took no part because one of the
Directors of the PCSO is his brother-in-law.
This case was then assigned to this ponente for the writing of the opinion of the Court.
The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor. A party's standing
before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the
importance of the issues raised. In the landmark Emergency Powers Cases, 29 this Court brushed aside this technicality
because "the transcendental importance to the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as
taxpayers' suits are concerned, this Court had declared that it "is not devoid of discretion as to whether or not it should
be entertained," 30 or that it "enjoys an open discretion to entertain the same or not." 31 In De La Llana vs. Alba, 32 this
Court declared:
1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de la Llana is concerned,
he certainly falls within the principle set forth in Justice Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus:
"The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement [Ibid, 89]. The
other petitioners as members of the bar and officers of the court cannot be considered as devoid of "any personal and
substantial interest" on the matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v.
Commission on Elections [L-40004, January 31, 1975, 62 SCRA 275]: "Then there is the attack on the standing of
petitioners, as vindicating at most what they consider a public right and not protecting their rights as individuals. This is
to conjure the specter of the public right dogma as an inhibition to parties intent on keeping public officials staying on
307
the path of constitutionalism. As was so well put by Jaffe; "The protection of private rights is an essential constituent of
public interest and, conversely, without a well-ordered state there could be no enforcement of private rights. Private
and public interests are, both in a substantive and procedural sense, aspects of the totality of the legal order."
Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply
demonstrated. There would be a retreat from the liberal approach followed in Pascual v. Secretary of Public Works,
foreshadowed by the very decision of People v. Vera where the doctrine was first fully discussed, if we act differently
now. I do not think we are prepared to take that step. Respondents, however, would hard back to the American
Supreme Court doctrine in Mellon v. Frothingham, with their claim that what petitioners possess "is an interest which is
shared in common by other people and is comparatively so minute and indeterminate as to afford any basis and
assurance that the judicial process can act on it." That is to speak in the language of a bygone era, even in the United
States. For as Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not
breached has definitely been lowered.
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 33 reiterated in Basco vs. Philippine
Amusements and Gaming Corporation, 34 this Court stated:
Objections to taxpayers' suits for lack of sufficient personality standing or interest are, however, in the main procedural
matters. Considering the importance to the public of the cases at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused the discretion given to them, this Court has
brushed aside technicalities of procedure and has taken cognizance of these petitions.
and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 35 it declared:
With particular regard to the requirement of proper party as applied in the cases before us, we hold that the same is
satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an
immediate injury as a result of the acts or measures complained of. [Ex Parte Levitt, 303 US 633]. And even if, strictly
speaking, they are not covered by the definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were invoking only an indirect and general interest
shared in common with the public. The Court dismissed the objective that they were not proper parties and ruled that
the transcendental importance to the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure. We have since then applied this exception in many other cases.
(Emphasis supplied)
In Daza vs. Singson, 36 this Court once more said:
. . . For another, we have early as in the Emergency Powers Cases that where serious constitutional questions are
involved, "the transcendental importance to the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure." The same policy has since then been consistently
followed by the Court, as in Gonzales vs. Commission on Elections [21 SCRA 774] . . .
The Federal Supreme Court of the United States of America has also expressed its discretionary power to liberalize the
rule on locus standi. In United States vs. Federal Power Commission and Virginia Rea Association vs. Federal Power
Commission, 37 it held:
We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both
petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose
problems is in any event more or less determined by the specific circumstances of individual situations, to set out the
divergent grounds in support of standing in these cases.
In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even
association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this
Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government
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agencies or instrumentalities. Among such cases were those assailing the constitutionality of (a) R.A. No. 3836 insofar as
it allows retirement gratuity and commutation of vacation and sick leave to Senators and Representatives and to
elective officials of both Houses of Congress; 38 (b) Executive Order No. 284, issued by President Corazon C. Aquino on
25 July 1987, which allowed members of the cabinet, their undersecretaries, and assistant secretaries to hold other
government offices or positions; 39 (c) the automatic appropriation for debt service in the General Appropriations Act;
40 (d) R.A. No. 7056 on the holding of desynchronized elections; 41 (d) R.A. No. 1869 (the charter of the Philippine
Amusement and Gaming Corporation) on the ground that it is contrary to morals, public policy, and order; 42 and (f) R.A.
No. 6975, establishing the Philippine National
Police. 43
Other cases where we have followed a liberal policy regarding locus standi include those attacking the validity or legality
of (a) an order allowing the importation of rice in the light of the prohibition imposed by R.A. No. 3452; 44 (b) P.D. Nos.
991 and 1033 insofar as they proposed amendments to the Constitution and P.D. No. 1031 insofar as it directed the
COMELEC to supervise, control, hold, and conduct the referendum-plebiscite on 16 October 1976; 45 (c) the bidding for
the sale of the 3,179 square meters of land at Roppongi, Minato-ku, Tokyo, Japan; 46 (d) the approval without hearing
by the Board of Investments of the amended application of the Bataan Petrochemical Corporation to transfer the site of
its plant from Bataan to Batangas and the validity of such transfer and the shift of feedstock from naphtha only to
naphtha and/or liquefied petroleum gas; 47 (e) the decisions, orders, rulings, and resolutions of the Executive Secretary,
Secretary of Finance, Commissioner of Internal Revenue, Commissioner of Customs, and the Fiscal Incentives Review
Board exempting the National Power Corporation from indirect tax and duties; 48 (f) the orders of the Energy Regulatory
Board of 5 and 6 December 1990 on the ground that the hearings conducted on the second provisional increase in oil
prices did not allow the petitioner substantial cross-examination; 49 (g) Executive Order No. 478 which levied a special
duty of P0.95 per liter or P151.05 per barrel of imported crude oil and P1.00 per liter of imported oil products; 50 (h)
resolutions of the Commission on Elections concerning the apportionment, by district, of the number of elective
members of Sanggunians; 51 and (i) memorandum orders issued by a Mayor affecting the Chief of Police of Pasay City.
52
In the 1975 case of Aquino vs. Commission on Elections, 53 this Court, despite its unequivocal ruling that the petitioners
therein had no personality to file the petition, resolved nevertheless to pass upon the issues raised because of the far-
reaching implications of the petition. We did no less in De Guia vs. COMELEC 54 where, although we declared that De
Guia "does not appear to have locus standi, a standing in law, a personal or substantial interest," we brushed aside the
procedural infirmity "considering the importance of the issue involved, concerning as it does the political exercise of
qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the
Constitution by respondent."
We find the instant petition to be of transcendental importance to the public. The issues it raised are of paramount
public interest and of a category even higher than those involved in many of the aforecited cases. The ramifications of
such issues immeasurably affect the social, economic, and moral well-being of the people even in the remotest
barangays of the country and the counter-productive and retrogressive effects of the envisioned on-line lottery system
are as staggering as the billions in pesos it is expected to raise. The legal standing then of the petitioners deserves
recognition and, in the exercise of its sound discretion, this Court hereby brushes aside the procedural barrier which the
respondents tried to take advantage of.
And now on the substantive issue.
Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO from holding and conducting lotteries "in
collaboration, association or joint venture with any person, association, company or entity, whether domestic or
foreign." Section 1 provides:
Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated
the Office, shall be the principal government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have the general powers conferred in
section thirteen of Act Numbered One thousand four hundred fifty-nine, as amended, and shall have the authority:
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A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and
manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of
Directors.
B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-related
investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration, association or
joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities
mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds
for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants:
Provided, That such investment will not compete with the private sector in areas where investments are adequate as
may be determined by the National Economic and Development Authority. (emphasis supplied)
The language of the section is indisputably clear that with respect to its franchise or privilege "to hold and conduct
charity sweepstakes races, lotteries and other similar activities," the PCSO cannot exercise it "in collaboration,
association or joint venture" with any other party. This is the unequivocal meaning and import of the phrase "except for
the activities mentioned in the preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and other similar
activities."
B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee Report No. 103 as reported out
by the Committee on Socio-Economic Planning and Development of the Interim Batasang Pambansa. The original text of
paragraph B, Section 1 of Parliamentary Bill No. 622 reads as follows:
To engage in any and all investments and related profit-oriented projects or programs and activities by itself or in
collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign,
for the main purpose of raising funds for health and medical assistance and services and charitable grants. 55
During the period of committee amendments, the Committee on Socio-Economic Planning and Development, through
Assemblyman Ronaldo B. Zamora, introduced an amendment by substitution to the said paragraph B such that, as
amended, it should read as follows:
Subject to the approval of the Minister of Human Settlements, to engage in health-oriented investments, programs,
projects and activities which may be profit- oriented, by itself or in collaboration, association, or joint venture with any
person, association, company or entity, whether domestic or foreign, for the purpose of providing for permanent and
continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and
services and/or charitable grants. 56
Before the motion of Assemblyman Zamora for the approval of the amendment could be acted upon, Assemblyman
Davide introduced an amendment to the amendment:
MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.
May I introduce an amendment to the committee amendment? The amendment would be to insert after "foreign" in
the amendment just read the following: EXCEPT FOR THE ACTIVITY IN LETTER (A) ABOVE.
When it is joint venture or in collaboration with any entity such collaboration or joint venture must not include activity
activity letter (a) which is the holding and conducting of sweepstakes races, lotteries and other similar acts.
MR. ZAMORA.
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We accept the amendment, Mr. Speaker.
MR. DAVIDE.
Thank you, Mr. Speaker.
THE SPEAKER.
Is there any objection to the amendment? (Silence) The amendment, as amended, is approved. 57
Further amendments to paragraph B were introduced and approved. When Assemblyman Zamora read the final text of
paragraph B as further amended, the earlier approved amendment of Assemblyman Davide became "EXCEPT FOR THE
ACTIVITIES MENTIONED IN PARAGRAPH (A)"; and by virtue of the amendment introduced by Assemblyman Emmanuel
Pelaez, the word PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez introduced other amendments.
Thereafter, the new paragraph B was approved. 58
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42.
No interpretation of the said provision to relax or circumvent the prohibition can be allowed since the privilege to hold
or conduct charity sweepstakes races, lotteries, or other similar activities is a franchise granted by the legislature to the
PCSO. It is a settled rule that "in all grants by the government to individuals or corporations of rights, privileges and
franchises, the words are to be taken most strongly against the grantee .... [o]ne who claims a franchise or privilege in
derogation of the common rights of the public must prove his title thereto by a grant which is clearly and definitely
expressed, and he cannot enlarge it by equivocal or doubtful provisions or by probable inferences. Whatever is not
unequivocally granted is withheld. Nothing passes by mere implication." 59
In short then, by the exception explicitly made in paragraph B, Section 1 of its charter, the PCSO cannot share its
franchise with another by way of collaboration, association or joint venture. Neither can it assign, transfer, or lease such
franchise. It has been said that "the rights and privileges conferred under a franchise may, without doubt, be assigned or
transferred when the grant is to the grantee and assigns, or is authorized by statute. On the other hand, the right of
transfer or assignment may be restricted by statute or the constitution, or be made subject to the approval of the
grantor or a governmental agency, such as a public utilities commission, exception that an existing right of assignment
cannot be impaired by subsequent legislation." 60
It may also be pointed out that the franchise granted to the PCSO to hold and conduct lotteries allows it to hold and
conduct a species of gambling. It is settled that "a statute which authorizes the carrying on of a gambling activity or
business should be strictly construed and every reasonable doubt so resolved as to limit the powers and rights claimed
under its authority." 61
Does the challenged Contract of Lease violate or contravene the exception in Section 1 of R.A. No. 1169, as amended by
B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries "in collaboration, association or joint
venture with" another?
We agree with the petitioners that it does, notwithstanding its denomination or designation as a (Contract of Lease). We
are neither convinced nor moved or fazed by the insistence and forceful arguments of the PGMC that it does not
because in reality it is only an independent contractor for a piece of work, i.e., the building and maintenance of a lottery
system to be used by the PCSO in the operation of its lottery franchise. Whether the contract in question is one of lease
or whether the PGMC is merely an independent contractor should not be decided on the basis of the title or designation
of the contract but by the intent of the parties, which may be gathered from the provisions of the contract itself. Animus
hominis est anima scripti. The intention of the party is the soul of the instrument. In order to give life or effect to an
instrument, it is essential to look to the intention of the individual who executed it. 62 And, pursuant to Article 1371 of
the Civil Code, "to determine the intention of the contracting parties, their contemporaneous and subsequent acts shall
be principally considered." To put it more bluntly, no one should be deceived by the title or designation of a contract.
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A careful analysis and evaluation of the provisions of the contract and a consideration of the contemporaneous acts of
the PCSO and PGMC indubitably disclose that the contract is not in reality a contract of lease under which the PGMC is
merely an independent contractor for a piece of work, but one where the statutorily proscribed collaboration or
association, in the least, or joint venture, at the most, exists between the contracting parties. Collaboration is defined as
the acts of working together in a joint project. 63 Association means the act of a number of persons in uniting together
for some special purpose or business. 64 Joint venture is defined as an association of persons or companies jointly
undertaking some commercial enterprise; generally all contribute assets and share risks. It requires a community of
interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and
duty, which may be altered by agreement to share both in profit and
losses. 65
The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither funds of its own nor the
expertise to operate and manage an on-line lottery system, and that although it wished to have the system, it would
have it "at no expense or risks to the government." Because of these serious constraints and unwillingness to bear
expenses and assume risks, the PCSO was candid enough to state in its RFP that it is seeking for "a suitable contractor
which shall build, at its own expense, all the facilities needed to operate and maintain" the system; exclusively bear "all
capital, operating expenses and expansion expenses and risks"; and submit "a comprehensive nationwide lottery
development plan . . . which will include the game, the marketing of the games, and the logistics to introduce the game
to all the cities and municipalities of the country within five (5) years"; and that the operation of the on-line lottery
system should be "at no expense or risk to the government" meaning itself, since it is a government-owned and
controlled agency. The facilities referred to means "all capital equipment, computers, terminals, software, nationwide
telecommunications network, ticket sales offices, furnishings and fixtures, printing costs, costs of salaries and wages,
advertising and promotions expenses, maintenance costs, expansion and replacement costs, security and insurance, and
all other related expenses needed to operate a nationwide on-line lottery system."
In short, the only contribution the PCSO would have is its franchise or authority to operate the on-line lottery system;
with the rest, including the risks of the business, being borne by the proponent or bidder. It could be for this reason that
it warned that "the proponent must be able to stand to the acid test of proving that it is an entity able to take on the
role of responsible maintainer of the on-line lottery system." The PCSO, however, makes it clear in its RFP that the
proponent can propose a period of the contract which shall not exceed fifteen years, during which time it is assured of a
"rental" which shall not exceed 12% of gross receipts. As admitted by the PGMC, upon learning of the PCSO's decision,
the Berjaya Group Berhad, with its affiliates, wanted to offer its services and resources to the PCSO. Forthwith, it
organized the PGMC as "a medium through which the technical and management services required for the project
would be offered and delivered to PCSO." 66
Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-line lottery system, the PCSO
had nothing but its franchise, which it solemnly guaranteed it had in the General Information of the RFP. 67 Howsoever
viewed then, from the very inception, the PCSO and the PGMC mutually understood that any arrangement between
them would necessarily leave to the PGMC the technical, operations, and management aspects of the on-line lottery
system while the PCSO would, primarily, provide the franchise. The words Gaming and Management in the corporate
name of respondent Philippine Gaming Management Corporation could not have been conceived just for euphemistic
purposes. Of course, the RFP cannot substitute for the Contract of Lease which was subsequently executed by the PCSO
and the PGMC. Nevertheless, the Contract of Lease incorporates their intention and understanding.
The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination as such is a crafty device,
carefully conceived, to provide a built-in defense in the event that the agreement is questioned as violative of the
exception in Section 1 (B) of the PCSO's charter. The acuity or skill of its draftsmen to accomplish that purpose easily
manifests itself in the Contract of Lease. It is outstanding for its careful and meticulous drafting designed to give an
immediate impression that it is a contract of lease. Yet, woven therein are provisions which negate its title and betray
the true intention of the parties to be in or to have a joint venture for a period of eight years in the operation and
maintenance of the on-line lottery system.
Consistent with the above observations on the RFP, the PCSO has only its franchise to offer, while the PGMC represents
and warrants that it has access to all managerial and technical expertise to promptly and effectively carry out the terms
of the contract. And, for a period of eight years, the PGMC is under obligation to keep all the Facilities in safe condition
and if necessary, upgrade, replace, and improve them from time to time as new technology develops to make the on-
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line lottery system more cost-effective and competitive; exclusively bear all costs and expenses relating to the printing,
manpower, salaries and wages, advertising and promotion, maintenance, expansion and replacement, security and
insurance, and all other related expenses needed to operate the on-line lottery system; undertake a positive advertising
and promotions campaign for both institutional and product lines without engaging in negative advertising against other
lessors; bear the salaries and related costs of skilled and qualified personnel for administrative and technical operations;
comply with procedural and coordinating rules issued by the PCSO; and to train PCSO and other local personnel and to
effect the transfer of technology and other expertise, such that at the end of the term of the contract, the PCSO will be
able to effectively take over the Facilities and efficiently operate the on-line lottery system. The latter simply means
that, indeed, the managers, technicians or employees who shall operate the on-line lottery system are not managers,
technicians or employees of the PCSO, but of the PGMC and that it is only after the expiration of the contract that the
PCSO will operate the system. After eight years, the PCSO would automatically become the owner of the Facilities
without any other further consideration.
For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of all games and the marketing
thereof, and determine the number of players, value of winnings, and the logistics required to introduce the games,
including the Master Games Plan. Of course, the PCSO has the reserved authority to disapprove them. 68 And, while the
PCSO has the sole responsibility over the appointment of dealers and retailers throughout the country, the PGMC may,
nevertheless, recommend for appointment dealers and retailers which shall be acted upon by the PCSO within forty-
eight hours and collect and retain, for its own account, a security deposit from dealers and retailers in respect of
equipment supplied by it.
This joint venture is further established by the following:
(a) Rent is defined in the lease contract as the amount to be paid to the PGMC as compensation for the fulfillment
of its obligations under the contract, including, but not limited to the lease of the Facilities. However, this rent is not
actually a fixed amount. Although it is stated to be 4.9% of gross receipts from ticket sales, payable net of taxes required
by law to be withheld, it may be drastically reduced or, in extreme cases, nothing may be due or demandable at all
because the PGMC binds itself to "bear all risks if the revenue from the ticket sales, on an annualized basis, are
insufficient to pay the entire prize money." This risk-bearing provision is unusual in a lessor-lessee relationship, but
inherent in a joint venture.
(b) In the event of pre-termination of the contract by the PCSO, or its suspension of operation of the on-line lottery
system in breach of the contract and through no fault of the PGMC, the PCSO binds itself "to promptly, and in any event
not later than sixty (60) days, reimburse the Lessor the amount of its total investment cost associated with the On-Line
Lottery System, including but not limited to the cost of the Facilities, and further compensate the LESSOR for loss of
expected net profit after tax, computed over the unexpired term of the lease." If the contract were indeed one of lease,
the payment of the expected profits or rentals for the unexpired portion of the term of the contract would be enough.
(c) The PGMC cannot "directly or indirectly undertake any activity or business in competition with or adverse to the
On-Line Lottery System of PCSO unless it obtains the latter's prior written consent." If the PGMC is engaged in the
business of leasing equipment and technology for an on-line lottery system, we fail to see any acceptable reason why it
should allow a restriction on the pursuit of such business.
(d) The PGMC shall provide the PCSO the audited Annual Report sent to its stockholders, and within two years from
the effectivity of the contract, cause itself to be listed in the local stock exchange and offer at least 25% of its equity to
the public. If the PGMC is merely a lessor, this imposition is unreasonable and whimsical, and could only be tied up to
the fact that the PGMC will actually operate and manage the system; hence, increasing public participation in the
corporation would enhance public interest.
(e) The PGMC shall put up an Escrow Deposit of P300,000,000.00 pursuant to the requirements of the RFP, which it
may, at its option, maintain as its initial performance bond required to ensure its faithful compliance with the terms of
the contract.
(f) The PCSO shall designate the necessary personnel to monitor and audit the daily performance of the on-line
lottery system; and promulgate procedural and coordinating rules governing all activities relating to the on-line lottery
system. The first further confirms that it is the PGMC which will operate the system and the PCSO may, for the
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protection of its interest, monitor and audit the daily performance of the system. The second admits the coordinating
and cooperative powers and functions of the parties.
(g) The PCSO may validly terminate the contract if the PGMC becomes insolvent or bankrupt or is unable to pay its
debts, or if it stops or suspends or threatens to stop or suspend payment of all or a material part of its debts.
All of the foregoing unmistakably confirm the indispensable role of the PGMC in the pursuit, operation, conduct, and
management of the On-Line Lottery System. They exhibit and demonstrate the parties' indivisible community of interest
in the conception, birth and growth of the on-line lottery, and, above all, in its profits, with each having a right in the
formulation and implementation of policies related to the business and sharing, as well, in the losses with the PGMC
bearing the greatest burden because of its assumption of expenses and risks, and the PCSO the least, because of its
confessed unwillingness to bear expenses and risks. In a manner of speaking, each is wed to the other for better or for
worse. In the final analysis, however, in the light of the PCSO's RFP and the above highlighted provisions, as well as the
"Hold Harmless Clause" of the Contract of Lease, it is even safe to conclude that the actual lessor in this case is the PCSO
and the subject matter thereof is its franchise to hold and conduct lotteries since it is, in reality, the PGMC which
operates and manages the on-line lottery system for a period of eight years.
We thus declare that the challenged Contract of Lease violates the exception provided for in paragraph B, Section 1 of
R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid for being contrary to law. This conclusion renders
unnecessary further discussion on the other issues raised by the petitioners.
WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease executed on 17 December
1993 by respondent Philippine Charity Sweepstakes Office (PCSO) and respondent Philippine Gaming Management
Corporation (PGMC) is hereby DECLARED contrary to law and invalid.
The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT.
No pronouncement as to costs.
[G.R. No. 159139. January 13, 2004]
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H.
LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners, vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD
COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM,
respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence;[1] or
(2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias.[2] In the present
case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear
violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the
automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to Mega
Pacific Consortium an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual
automation Contract with Mega Pacific eSolutions, Inc., a company that joined the bidding but had not met the eligibility
requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing
mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software
even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard
the integrity of elections, especially the following three items:
They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the Comelec itself
They were not able to detect previously downloaded results at various canvassing or consolidation levels and to
prevent these from being inputted again
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They were unable to print the statutorily required audit trails of the count/canvass at different levels without any
loss of data
Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court
has no choice but to exercise its solemn constitutional duty[3] to void the assailed Resolution and the subject Contract.
The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms,
but have also cast serious doubts upon the poll bodys ability and capacity to conduct automated elections. Truly, the
pith and soul of democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and
gravely abusive acts of Comelec.
The Case
Before us is a Petition[4] under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No. 6074 of
the Commission on Elections (Comelec), which awarded Phase II of the Modernization Project of the Commission to
Mega Pacific Consortium (MPC); (2) to enjoin the implementation of any further contract that may have been entered
into by Comelec either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI); and (3) to compel
Comelec to conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled from official documents, the parties pleadings, as well as from
admissions during the Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046,[5] which authorized Comelec to conduct a nationwide
demonstration of a computerized election system and allowed the poll body to pilot-test the system in the March 1996
elections in the Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436[6] authorizing Comelec to use an automated election
system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated counting machines (ACMs), computer equipment,
devices and materials; and to adopt new electoral forms and printing materials.
Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -- in its
Resolution No. 2985 dated February 9, 1998[7] -- eventually decided against full national implementation and limited
the automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the machines
to read correctly some automated ballots in one town, the poll body later ordered their manual count for the entire
Province of Sulu.[8]
In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done
manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It
resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter
Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic
Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of
P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of
an additional P500 million.
On January 28, 2003, the Commission issued an Invitation to Apply for Eligibility and to Bid, which we quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
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The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites
interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase,
lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services needed for a
comprehensive Automated Election System, consisting of three (3) phases: (a) registration/verification of voters, (b)
automated counting and consolidation of votes, and (c) electronic transmission of election results, with an approved
budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest
belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent (60%) of the
outstanding capital stock belongs to citizens of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more
manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular
contract, provided that Filipino ownership thereof shall be at least sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the Bids
and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del
Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashiers check,
payable to the Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for
each phase. For this purpose, interested offerors, vendors, suppliers or lessors have the option to participate in any or all
of the three (3) phases of the comprehensive Automated Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on Elections,
Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required to submit
their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the comprehensive
Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on
28 February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract is
executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in the
situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify the
bidder upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it in the
preparation of its bid.[9]
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the
schedule of activities for the project bidding, as follows:
1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing business in
the Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization Standardization and Regulation of
the Procurement Activities of the Government and for other purposes etc.)
2.) Track Record:
a) For counting machines should have been used in at least one (1) political exercise with no less than Twenty Million
Voters;
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b) For verification of voters the reference site of an existing data base installation using Automated Fingerprint
Identification System (AFIS) with at least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be released at the
same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003 at 2:00 oclock p.m. shall be the eligibility criteria, Terms of Reference (TOR) and
other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier

b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco[10]
On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation
machines. The Bids and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18, 2003 and
gave prospective bidders until March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into a
joint venture may be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint
venture is defined in the RFP as a group of two or more manufacturers, suppliers and/or distributors that intend to be
jointly and severally responsible or liable for a particular contract.[11]
Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidders first envelope or
the Eligibility Envelope should establish the bidders eligibility to bid and its qualifications to perform the acts if accepted.
On the other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the bidding procedures as
follows:
25. Determination of Eligibility of Prospective Bidders
25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility. In case any of the
requirements specified in Clause 20 is missing from the first bid envelope, the BAC shall declare said prospective Bidder
as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned unopened.
25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail criteria and shall be determined as
either eligible or ineligible. If the prospective Bidder is rated passed for all the legal, technical and financial
requirements, he shall be considered eligible. If the prospective Bidder is rated failed in any of the requirements, he shall
be considered ineligible.
26. Bid Examination/Evaluation
26.1 The BAC will examine the Bids to determine whether they are complete, whether any computational errors have
been made, whether required securities have been furnished, whether the documents have been properly signed, and
whether the Bids are generally in order.
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26.2 The BAC shall check the submitted documents of each Bidder against the required documents enumerated under
Clause 20, to ascertain if they are all present in the Second bid envelope (Technical Envelope). In case one (1) or more of
the required documents is missing, the BAC shall rate the Bid concerned as failed and immediately return to the Bidder
its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the first bid envelope as passed.
26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical Envelopes were passed or
rated on or above the passing score. Only Bids that are determined to contain all the bid requirements for both
components shall be rated passed and shall immediately be considered for evaluation and comparison.
26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate the Total Bid Price
as calculated. Arithmetical errors will be rectified on the following basis: If there is a discrepancy between words and
figures, the amount in words will prevail. If there is a discrepancy between the unit price and the total price that is
obtained by multiplying the unit price and the quantity, the unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid Price and the sum of the total prices, the sum of the total
prices prevail and the Total Bid Price shall be corrected accordingly.
26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid Price as calculated
that exceeds the approved budget for the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out all the elements
of the proposed Contract, including but not limited to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank the same in ascending order.
xxxxxxxxx
29. Postqualification
29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the lowest calculated
bid is qualified to satisfactorily perform the Contract.
29.2 The determination will take into account the Bidders financial, technical and production capabilities/resources. It
will be based upon an examination of the documentary evidence of the Bidders qualification submitted by the Bidder as
well as such other information as the BAC deems necessary and appropriate.
29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not subsequently be made
responsive by the Bidder by correction of the non-conformity.
29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not constitute a material
deviation, provided such waiver does not prejudice or affect the relative ranking of any Bidder.
29.5 Should the BAC find that the Bidder complies with the legal, financial and technical requirements, it shall make an
affirmative determination which shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will make a
negative determination which will result in rejection of the Bidders bid, in which event the BAC will proceed to the next
lowest calculated bid to make a similar determination of that Bidders capabilities to perform satisfactorily.[12]
Out of the 57 bidders,[13] the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For
technical evaluation, they were referred to the BACs Technical Working Group (TWG) and the Department of Science
and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had obtained a
number of failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003,
promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this Resolution and the
award of the project to MPC on May 16, 2003.
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On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of
the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter[14] to Comelec
Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC due to glaring irregularities
in the manner in which the bidding process had been conducted. Citing therein the noncompliance with eligibility as well
as technical and procedural requirements (many of which have been discussed at length in the Petition), they sought a
re-bidding.
In a letter-reply dated June 6, 2003,[15] the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive
assistant -- rejected the protest and declared that the award would stand up to the strictest scrutiny.
Hence, the present Petition.[16]
The Issues
In their Memorandum, petitioners raise the following issues for our consideration:
1. The COMELEC awarded and contracted with a non-eligible entity; x x x
2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure was
ignored. In effect, the COMELEC changed the rules after the bidding in effect changing the nature of the contract bidded
upon.
3. Petitioners have locus standi.
4. Instant Petition is not premature. Direct resort to the Supreme Court is justified.[17]
In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive
constitutional mandate to oversee elections, gravely abused its discretion when, in the exercise of its administrative
functions, it awarded to MPC the contract for the second phase of the comprehensive Automated Election System.
Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural issues:
the legal standing of petitioners and the alleged prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:

Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity or
constitutionality of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had been
violated by the award of the Contract. Furthermore, they allegedly have no actual and material interest in the Contract
and, hence, do not stand to be injured or prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens --
respond that the issues central to this case are of transcendental importance and of national interest. Allegedly,
Comelecs flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on the
success or the failure of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of the will of
the people would inevitably affect their faith in the democratic system of government. Petitioners further argue that the
award of any contract for automation involves disbursement of public funds in gargantuan amounts; therefore, public
interest requires that the laws governing the transaction must be followed strictly.
We agree with petitioners. Our nations political and economic future virtually hangs in the balance, pending the
outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this case is a matter of
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public concern and imbued with public interest;[18] in other words, it is of paramount public interest[19] and
transcendental importance.[20] This fact alone would justify relaxing the rule on legal standing, following the liberal
policy of this Court whenever a case involves an issue of overarching significance to our society.[21] Petitioners legal
standing should therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of illegal disbursement of public
funds,[22] or if public money is being deflected to any improper purpose;[23] or when petitioners seek to restrain
respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.[24] In the instant
case, individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are properly
and lawfully used. In the Petition, they claim that the bidding was defective, the winning bidder not a qualified entity,
and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain respondents from
implementing the Contract and, necessarily, from making any unwarranted expenditure of public funds pursuant
thereto. Thus, we hold that petitioners possess locus standi.
Second Procedural Issue:

Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism available
to them under RA 9184, the Government Procurement Reform Act, for the settlement of disputes pertaining to
procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all stages of
procurement may be lodged with the head of the procuring entity by filing a verified position paper and paying a protest
fee. Section 57 of the same law mandates that in no case shall any such protest stay or delay the bidding process, but it
must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by the
statute shall have been completed. Cases filed in violation of this process are to be dismissed for lack of jurisdiction.
Regional trial courts shall have jurisdiction over final decisions of the head of the procuring entity, and court actions shall
be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC
eligible to bid and recommending the award of the Contract to it (MPC). According to respondents, the Report should
have been appealed to the Comelec en banc, pursuant to the aforementioned sections of RA 9184. In the absence of
such appeal, the determination and recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to
Respondent MPC even before the BAC managed to issue its written report and recommendation on April 21, 2003. Thus,
how could petitioners have appealed the BACs recommendation or report to the head of the procuring entity (the
chairman of Comelec), when the Comelec en banc had already approved the award of the contract to MPC even before
petitioners learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003 session, it received and approved the verbal report and
recommendation of the BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its verbal
report and recommendation by submitting it in writing on April 21, 2003. Respondents insist that the law does not
require that the BAC Report be in writing before Comelec can act thereon; therefore, there is allegedly nothing irregular
about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BACs report and recommendation to the head of the
procuring entity (the Comelec chair) only upon their discovery thereof, which at the very earliest would have been on
April 21, 2003, when the BAC actually put its report in writing and finally released it. Even then, what would have been
the use of protesting/appealing the report to the Comelec chair, when by that time the Commission en banc (including
the chairman himself) had already approved the BAC Report and awarded the Contract to MPC?
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And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003
(immediately after the en banc session), at that point the Commission en banc had already given its approval to the BAC
Report along with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for
petitioners to avail themselves of the administrative remedy that the Commission is so impiously harping on. There is no
doubt that they had not been accorded the opportunity to avail themselves of the process provided under Section 55 of
RA 9184, according to which a protest against a decision of the BAC may be filed with the head of the procuring entity.
Nemo tenetur ad impossible,[26] to borrow private respondents favorite Latin excuse.[27]
Some Observations on the

BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a
few observations regarding the BAC Report and the Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the Report submitted by the BAC came only
after the former had already awarded the Contract, because the latter had been asked to render its report and
recommendation orally during the Commissions en banc session on April 15, 2003. Accordingly, Comelec supposedly
acted upon such oral recommendation and approved the award to MPC on the same day, following which the
recommendation was subsequently reduced into writing on April 21, 2003. While not entirely outside the realm of the
possible, this interesting and unique spiel does not speak well of the process that Comelec supposedly went through in
making a critical decision with respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been extremely
conscious of the overarching need for utter transparency. They would have scrupulously avoided the slightest hint of
impropriety, preferring to maintain an exacting regularity in the performance of their duties, instead of trying to break a
speed record in the award of multi-billion-peso contracts. After all, between April 15 and April 21 were a mere six (6)
days. Could Comelec not have waited out six more days for the written report of the BAC, instead of rushing pell-mell
into the arms of MPC? Certainly, respondents never cared to explain the nature of the Commissions dire need to act
immediately without awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the multi-
billion-peso deal, with its claim of having been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials
involved, it should nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract ahead
of the BACs written report) would definitely serve as a clever and effective way of averting and frustrating any
impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of exhausting administrative remedies.
Respondents may not have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003[28]
serves to eliminate the prematurity issue as it was an actual written protest against the decision of the poll body to
award the Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information Technology
Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly
because it hews closely to the procedure outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust administrative
remedies in the light of Paat v. Court of Appeals.[29] Paat enumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
(1) when there is a violation of due process,
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(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and
assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention.[30]
The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: (7) when to require exhaustion
of administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy and adequate
remedy, and (11) when there are circumstances indicating the urgency of judicial intervention. As already stated,
Comelec itself made the exhaustion of administrative remedies legally impossible or, at the very least, unreasonable.
In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the
precipitate awarding of the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract with
MPC implemented in time for the elections in May 2004 (barely four months away) -- have combined to bring about the
urgent need for judicial intervention, thus prompting this Court to dispense with the procedural exhaustion of
administrative remedies in this case.
Main Substantive Issue:

Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award is invalid, since Comelec gravely
abused its discretion when it did the following:
1. Awarded the Contract to MPC though it did not even participate in the bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its Report,
which formed the basis of the assailed Resolution, only on April 21, 2003[31]
4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the
mandatory requirements of RA 8436 as well as those set forth in Comelecs own Request for Proposal on the automated
election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the technical
tests conducted by the Department of Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting machines
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After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it
sufficient to focus discussion on the following major areas of concern that impinge on the issue of grave abuse of
discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on the present
controversy
A.
Failure to Establish the Identity,
Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners
allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003,
or 11 days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a
part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI allegedly
for and on behalf of MPC. They also call attention to the official receipt issued to MPC, acknowledging payment for the
bidding documents, as proof that it was the consortium that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory -- Willy U. Yu, President, Mega Pacific
eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific Consortium -- and without any further proof, does not by
itself prove the existence of the consortium. It does not show that MPEI or its president have been duly pre-authorized
by the other members of the putative consortium to represent them, to bid on their collective behalf and, more
important, to commit them jointly and severally to the bid undertakings. The letter is purely self-serving and
uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof that
it was the purported consortium that participated in the bidding. Such receipts are issued by cashiers without any legally
sufficient inquiry as to the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium,
Comelecs BAC should have examined the bidding documents submitted on behalf of MPC. They would have easily
discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request for
Proposal for the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A bidders
first envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and capacity to
perform the contract if its bid was accepted, while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations, licenses
and permits, mayors permit, VAT certification, and so forth; technical documents containing documentary evidence to
establish the track record of the bidder and its technical and production capabilities to perform the contract; and
financial documents, including audited financial statements for the last three years, to establish the bidders financial
capacity.
In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the
Eligibility Envelope would necessarily have to include a copy of the joint venture agreement, the consortium agreement
or memorandum of agreement -- or a business plan or some other instrument of similar import -- establishing the due
existence, composition and scope of such aggrupation. Otherwise, how would Comelec know who it was dealing with,
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and whether these parties are qualified and capable of delivering the products and services being offered for
bidding?[32]
In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be
conclusively ascertained by scrutinizing the two-inch thick Eligibility Requirements file submitted by Comelec last
October 9, 2003, in partial compliance with this Courts instructions given during the Oral Argument. This file purports to
replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on behalf of MPC, in connection
with the bidding conducted in March 2003. Included in the file are the incorporation papers and financial statements of
the members of the supposed consortium and certain certificates, licenses and permits issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of
agreement, or business plan executed among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as part of
the bidding process.
It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to conclude
that a consortium had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT.[33]
Neither was there anything to indicate the exact relationships between and among these firms; their diverse roles,
undertakings and prestations, if any, relative to the prosecution of the project, the extent of their respective
investments (if any) in the supposed consortium or in the project; and the precise nature and extent of their respective
liabilities with respect to the contract being offered for bidding. And apart from the self-serving letter of March 7, 2003,
there was not even any indication that MPEI was the lead company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the alleged
consortium really existed and was eligible and qualified; and that the arrangements among the members were
satisfactory and sufficient to ensure delivery on the Contract and to protect the governments interest.
Notwithstanding such deficiencies, Comelec still deemed the consortium eligible to participate in the bidding, proceeded
to open its Second Envelope, and eventually awarded the bid to it, even though -- per the Comelecs own RFP -- the BAC
should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should not
have allowed them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-
Transfer Law), as amended by RA 7718. This provision states in part that a joint venture/consortium proponent shall be
evaluated based on the individual or collective experience of the member-firms of the joint venture or consortium and
of the contractor(s) that it has engaged for the project. Parenthetically, respondents have uniformly argued that the said
IRR of RA 6957, as amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track
record or lack thereof, it would surely not have qualified and would have been immediately considered ineligible to bid,
as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies
and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court during
the Oral Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own personal
knowledge, that there had indeed been a written agreement among the consortium members,[34] although it was an
internal matter among them,[35] and of the fact that it would be presented by counsel for private respondent.[36]
However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in
effect admitted that, while he was the commissioner-in-charge of Comelecs Legal Department, he had never seen, even
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up to that late date, the agreement he spoke of.[37] Under further questioning, he was likewise unable to provide any
information regarding the amounts invested into the project by several members of the claimed consortium.[38] A short
while later, he admitted that the Commission had not taken a look at the agreement (if any).[39]
He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-in-
charge of the Phase II Modernization project (the automated election system); but that, in any case, the BAC and the
Phase II Modernization Project Team did look into the aspect of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the eligibility,
qualifications and credentials of the consortium-bidder, still, in all probability, the former would have referred the task
to Commissioner Tuason, head of Comelecs Legal Department. That task was the appreciation and evaluation of the
legal effects and consequences of the terms, conditions, stipulations and covenants contained in any joint venture
agreement, consortium agreement or a similar document -- assuming of course that any of these was available at the
time. The fact that Commissioner Tuason was barely aware of the situation bespeaks the complete absence of such
document, or the utter failure or neglect of the Comelec to examine it -- assuming it was available at all -- at the time the
award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open
court about there being one written agreement among all the consortium members, when he subsequently referred[40]
to the four (4) Memoranda of Agreement (MOAs) executed by them.[41]
At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isnt it enough that
there are these corporations coming together to carry out the automation project? Isnt it true, as respondent aver, that
nowhere in the RFP issued by Comelec is it required that the members of the joint venture execute a single written
agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable may be
evidenced not only by a single joint venture agreement, but also by supplementary documents executed by the parties
signifying such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered to
check. It never based its decision on documents or other proof that would concretely establish the existence of the
claimed consortium or joint venture or agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his company represented a consortium of several
different corporations. It concluded forthwith that a consortium indeed existed, composed of such and such members,
and thereafter declared that the entity was eligible to bid.
True, copies of financial statements and incorporation papers of the alleged consortium members were submitted. But
these papers did not establish the existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium or joint venture. For instance, the
papers may have been intended to show that those companies were each qualified to be a sub-contractor (and nothing
more) in a major project. Those documents did not by themselves support the assumption that a consortium or joint
venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its
capacity to deliver on the Contract, and the members joint and several liability therefor, Comelec nevertheless assumed
that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract
was eventually awarded, in gross violation of the formers own bidding rules and procedures contained in its RFP.
Therein lies Comelecs grave abuse of discretion.
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and effective and binding on, all the five consortium members -- as
earlier claimed by Commissioner Tuason in open court -- it turns out that what was actually executed were four (4)
separate and distinct bilateral Agreements.[42] Obviously, Comelec was furnished copies of these Agreements only after
the bidding process had been terminated, as these were not included in the Eligibility Documents. These Agreements are
as follows:
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A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv
A Teaming Agreement between MPEI and Election.com Ltd.
A Teaming Agreement between MPEI and ePLDT.
In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the
other contracting party, leaving the other consortium members total strangers thereto. Under this setup, MPEI dealt
separately with each of the members, and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to
do with one another, each dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still
qualify (even at that late stage) as a consortium or joint venture, since the first two Agreements had allegedly set forth
the joint and several undertakings among the parties, whereas the latter two clarified the parties respective roles with
regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors.
Additionally, the use of the phrase particular contract in the Comelecs Request for Proposal (RFP), in connection with
the joint and several liabilities of companies in a joint venture, is taken by them to mean that all the members of the
joint venture need not be solidarily liable for the entire project or joint venture, because it is sufficient that the lead
company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec after
the end of the bidding process did nothing to eliminate the grave abuse of discretion it had already committed on April
15, 2003.
Deficiencies Have
Not Been Cured
In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all documents executed
by the consortium members, even if these documents are not referred to therein. The basis of this assertion appears to
be the passages from Section 1.4 of the Contract, which is reproduced as follows:
All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or mentioned
in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually complementary and
explanatory of each other such that what is noted in one although not shown in the other shall be considered contained
in all, and what is required by any one shall be as binding as if required by all, unless one item is a correction of the
other.
The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project, in
accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution and
completion of the Project shall be deemed included in the Contract.
Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -- those entered into
by MPEI and the other members of the consortium as regards their joint and several undertakings -- have been cured.
Better still, such deficiencies have supposedly been prevented from arising as a result of the above-quoted provisions,
from which it can be immediately established that each of the members of MPC assumes the same joint and several
liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to, entitled The Automated Counting and
Canvassing Project Contract, is between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not
MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention of a consortium or joint venture, of
members thereof, much less of joint and several liability. Supposedly executed sometime in May 2003,[43] the Contract
bears a notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as president of MPEI (not for
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and on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2 that MPEI (not MPC) is to supply
the Equipment and perform the Services under the Contract, in accordance with the appendices thereof; nothing
whatsoever is said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less
preventing) deficiencies in the bilateral agreements entered into by MPEI with the other members of the consortium,
with respect to their joint and several liabilities. The term Contract Documents, as used in the quoted passages of
Section 1.4, has a well-defined meaning and actually refers only to the following documents:
The Contract itself along with its appendices
The Request for Proposal (also known as Terms of Reference) issued by the Comelec, including the Tender Inquiries
and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be understood as referring to or including the MOAs and the
Teaming Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and
admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming
Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it can
be immediately established that each of the members of MPC assumes the same joint and several liability as the other
members. Earlier, respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C, and
between MPEI and WeSolv) had set forth the joint and several undertakings among the parties; whereas the two
Teaming Agreements clarified the parties respective roles with regard to the Project, with MPEI being the independent
contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the very
clear terms and stipulations contained in the MOAs and the Teaming Agreements -- entered into by MPEI with SK C&C,
WeSolv, Election.com and ePLDT -- negate the idea that these members are on a par with one another and are, as such,
assuming the same joint and several liability.
Moreover, respondents have earlier seized upon the use of the term particular contract in the Comelecs Request for
Proposal (RFP), in order to argue that all the members of the joint venture did not need to be solidarily liable for the
entire project or joint venture. It was sufficient that the lead company and the member in charge of a particular contract
or aspect of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves us at a loss. Are
respondents trying to establish the same joint and solidary liability among all the members or not?
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary
undertaking of the lead company and the consortium member concerned for each particular Contract, inasmuch as the
position of MPEI and anyone else performing the services contemplated under the Contract is described therein as that
of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision being
relied upon by respondents is Article 14, Independent Contractors, which states: Nothing contained herein shall be
construed as establishing or creating between the COMELEC and MEGA the relationship of employee and employer or
principal and agent, it being understood that the position of MEGA and of anyone performing the Services contemplated
under this Contract, is that of an independent contractor.
Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principal-
agent relationship and the complications that it would produce. Hence, the Article states that the role or position of
MPEI, or anyone else performing on its behalf, is that of an independent contractor. It is obvious to the Court that
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respondents are stretching matters too far when they claim that, because of this provision, the Contract in effect
confirms the solidary undertaking of the lead company and the consortium member concerned for the particular phase
of the project. This assertion is an absolute non sequitur.
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the consortium members under the Civil Code
provisions on partnership, reasoning that MPEI et al. represented themselves as partners and members of MPC for
purposes of bidding for the Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon
such representation. Their liability as partners is solidary with respect to everything chargeable to the partnership under
certain conditions.
The Court has two points to make with respect to this argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDT never represented themselves as partners and members of MPC, whether for purposes of
bidding or for something else. It was MPEI alone that represented them to be members of a consortium it supposedly
headed. Thus, its acts may not necessarily be held against the other members.
Second, this argument of the OSG in its Memorandum[44] might possibly apply in the absence of a joint venture
agreement or some other writing that discloses the relationship of the members with one another. But precisely, this
case does not deal with a situation in which there is nothing in writing to serve as reference, leaving Comelec to rely on
mere representations and therefore justifying a falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI
with Election.com and ePLDT (copies of which have been furnished the Comelec) are very clear with respect to the
extent and the limitations of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are limited
only to the particular areas of work wherein their services are engaged or their products utilized. As for Election.com
and ePLDT, their separate Teaming Agreements specifically ascribe to them the role of subcontractor vis--vis MPEI as
contractor and, based on the terms of their particular agreements, neither Election.com nor ePLDT is, with MPEI, jointly
and severally liable to Comelec.[45] It follows then that in the instant case, there is no justification for anyone, much less
Comelec, to resort to the rules on partnership and partners liabilities.
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be
evaluated on a collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on account
of its recent incorporation) should not by itself disqualify MPC, since the other members of the consortium could meet
the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the members of MPC, their contribution of
assets and sharing of risks, and the community of their interest in the performance of the Contract lead to these
reasonable conclusions: (1) that their collective qualifications should be the basis for evaluating their eligibility; (2) that
the sheer enormity of the project renders it improbable to expect any single entity to be able to comply with all the
eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows bids from
manufacturers, suppliers and/or distributors that have formed themselves into a joint venture, in recognition of the
virtual impossibility of a single entitys ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the Build-Operate-Transfer Law)
as amended by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or consortiums.
Under the IRR, a joint venture/consortium proponent shall be evaluated based on the individual or the collective
experience of the member-firms of the joint venture/consortium and of the contractors the proponent has engaged for
the project.
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Unfortunately, this argument seems to assume that the collective nature of the undertaking of the members of MPC,
their contribution of assets and sharing of risks, and the community of their interest in the performance of the Contract
entitle MPC to be treated as a joint venture or consortium; and to be evaluated accordingly on the basis of the members
collective qualifications when, in fact, the evidence before the Court suggest otherwise.
This Court in Kilosbayan v. Guingona[46] defined joint venture as an association of persons or companies jointly
undertaking some commercial enterprise; generally, all contribute assets and share risks. It requires a community of
interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and
[a] duty, which may be altered by agreement to share both in profit and losses.
Going back to the instant case, it should be recalled that the automation Contract with Comelec was not executed by the
consortium MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract contains no mention
whatsoever of any consortium or members thereof. This fact alone seems to contradict all the suppositions about a joint
undertaking that would normally apply to a joint venture or consortium: that it is a commercial enterprise involving a
community of interest, a sharing of risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and
WeSolv Open Computing, Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short paragraphs
that would easily fit in one page. It reads as follows:
1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may be most
beneficial to both parties and other subcontractors involved in the Project.
2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to the
latters approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC concerning WeSolvs
portion of the Project.
3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied
by the former for the Project.
4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the
parties.
5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the attainment of
the objectives and purposes of this Agreement.
6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and services
including but not limited to the scope of the products and services to be supplied and payment terms, WeSolv shall
cease to be bound by its obligations stated in the aforementioned paragraphs.
7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the
parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines. (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the body of
which consists of only six (6) paragraphs, which we quote:
1. All parties agree to cooperate in achieving the Consortiums objective of successfully implementing the Project in the
substance and form as may be most beneficial to the Consortium members and in accordance w/ the demand of the
RFP.
2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter and
sign, for and in behalf of its members any and all agreement/s which maybe required in the implementation of the
Project.
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3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the
particular products and/or services supplied by such individual member for the project, in accordance with their
respective undertaking or sphere of responsibility.
4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the
parties.
5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the attainment of
the objectives and purposes of this Agreement.
6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the
parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines. (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any
specifics or details as to the exact nature and scope of the parties respective undertakings, performances and
deliverables under the Agreement with respect to the automation project. Likewise, the two Agreements are quite
bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in the
revenues and/or profit from the Contract with Comelec, and so forth -- all of which are normal for agreements of this
nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C comprises fully
90 percent of the entire undertaking with respect to the election automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate Teaming Agreements they entered into with MPEI for the remaining 10
percent of the entire project undertaking are ironically much longer and more detailed than the MOAs discussed earlier.
Although specifically ascribing to them the role of subcontractor vis--vis MPEI as contractor, these Agreements are,
however, completely devoid of any pricing data or payment terms. Even the appended Schedules supposedly containing
prices of goods and services are shorn of any price data. Again, as mentioned earlier, based on the terms of their
particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice; and
how a dispute between the parties or a claim by Comelec against them, for instance, could be resolved without lengthy
and debilitating litigations. Absent any clear-cut statement as to the exact nature and scope of the parties respective
undertakings, commitments, deliverables and covenants, one party or another can easily dodge its obligation and deny
or contest its liability under the Agreement; or claim that it is the other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party,
disbursements for expenses, the parties respective shares in the profits and the like, it seems to the Court that this
situation could readily give rise to all kinds of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of
the members of the consortium. The Court is not even mentioning the possibility of a situation arising from a failure of
WeSolv and MPEI to agree on the scope, the terms and the conditions for the supply of the products and services under
the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound by its
obligations -- including its joint and solidary liability with MPEI under the MOA -- and could forthwith disengage from the
project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI by simply failing to agree. Where
would that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be
treated as a consortium or joint venture, at least of the type that government agencies like the Comelec should be
dealing with. With more reason is it unable to agree to the proposal to evaluate the members of MPC on a collective
basis.
In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been
arguing that the IRR for RA 6957, as amended, should be applied to the instant case in order to allow a collective
evaluation of consortium members. Surprisingly, considering these facts, respondents have not deemed it necessary for
MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.
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According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or
participants thereof are required to submit a sworn statement that, if awarded the contract, they shall bind themselves
to be jointly, severally and solidarily liable for the project proponents obligations thereunder. This provision was
supposed to mirror Section 5 of RA 6957, as amended, which states: In all cases, a consortium that participates in a bid
must present proof that the members of the consortium have bound themselves jointly and severally to assume
responsibility for any project. The withdrawal of any member of the consortium prior to the implementation of the
project could be a ground for the cancellation of the contract.
The Court has certainly not seen any joint and several undertaking by the MPC members that even approximates the
tenor of that which is described above. We fail to see why respondents should invoke the IRR if it is for their benefit, but
refuse to comply with it otherwise.
B.
DOST Technical Tests Flunked by the
Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive issue: the ACMs failure to pass the tests of
the Department of Science and Technology (DOST).
After respondent consortium and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the
Comelecs BAC -- through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals.
Requirements that were highly technical in nature and that required the use of certain equipment in the evaluation
process were referred to the DOST for testing.
Once again, the Court finds itself at the crossroads of our nations history. At stake in this controversy is not just the
business of a computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither is it
about whether this country should switch from the manual to the automated system of counting and canvassing votes.
At its core is the ability and capacity of the Commission on Elections to perform properly, legally and prudently its legal
mandate to implement the transition from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec has
not merely gravely abused its discretion in awarding the Contract for the automation of the counting and canvassing of
the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily accepting electronic
hardware and software that admittedly failed to pass legally mandated technical requirements. Inadequate as they are,
the remedies it proffers post facto do not cure the grave abuse of discretion it already committed (1) on April 15, 2003,
when it illegally made the award; and (2) sometime in May 2003 when it executed the Contract for the purchase of
defective machines and non-existent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void and
illegal transaction that seriously endangers the breakdown of our electoral system. For this Court to cop-out and to close
its eyes to these illegal transactions, while convenient, would be to abandon its constitutional duty of safeguarding
public interest.
As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto
including the still-to-be-produced (or in Comelecs words, to be reprogrammed) software, as well as all the payments
made therefor, have no basis whatsoever in law. The public funds expended pursuant to the void Resolution and
Contract must therefore be recovered from the payees and/or from the persons who made possible the illegal
disbursements, without prejudice to possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and held
accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their functions. The
State, of course, is not bound by the mistakes and illegalities of its agents and servants.
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True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it must
first have a diligent and competent electoral agency that can properly and prudently implement a well-conceived
automated election system.
At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to
procure the proper computerized hardware and software legally, based on a transparent and valid system of public
bidding. As in any democratic system, the ultimate goal of automating elections must be achieved by a legal, valid and
above-board process of acquiring the necessary tools and skills therefor. Though the Philippines needs an automated
electoral process, it cannot accept just any system shoved into its bosom through improper and illegal methods. As the
saying goes, the end never justifies the means. Penumbral contracting will not produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No. 6074
awarding the contract for Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared null and void is the
subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI).[55] Comelec is further ORDERED to
refrain from implementing any other contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if any,
of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract. Let the
Office of the Solicitor General also take measures to protect the government and vindicate public interest from the ill
effects of the illegal disbursements of public funds made by reason of the void Resolution and Contract.
SO ORDERED.
ISAGANI CRUZ and CESAR EUROPA, petitioners, vs. SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES,
SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO
WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS,
NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-
ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD,
DATU RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU
SAHAMPONG MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S.
REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-
CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA
GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY
SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO,
CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG,
OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN,
RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A.
LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY,
LEONARDA SAWAY, JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG
MALID, MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY
DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS,
ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA,
ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, represented by her father
CORNELIO MALID, MARCELINO M. LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID, represented
by her father TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M. EMUY,
SR., SUSAN BOLANIO, OND, PULA BATO BLAAN TRIBAL FARMERS ASSOCIATION, INTER-PEOPLES EXCHANGE, INC. and
GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL RESOURCES, INC.,
intervenor.
RESOLUTION
PER CURIAM:
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Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers,
assailing the constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the
Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to comment.[1] In compliance, respondents
Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP), the government agency
created under the IPRA to implement its provisions, filed on October 13, 1998 their Comment to the Petition, in which
they defend the constitutionality of the IPRA and pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources (DENR) and
Secretary of the Department of Budget and Management (DBM) filed through the Solicitor General a consolidated
Comment. The Solicitor General is of the view that the IPRA is partly unconstitutional on the ground that it grants
ownership over natural resources to indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the IPRA, Mr.
Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the leaders and members of 112 groups of
indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. They join the NCIP in defending the
constitutionality of IPRA and praying for the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to Appear as
Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae and that the State has the
responsibility to protect and guarantee the rights of those who are at a serious disadvantage like indigenous peoples.
For this reason it prays that the petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation for the
Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-in-
Intervention. They agree with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray that the
petition for prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their respective memoranda
in which they reiterate the arguments adduced in their earlier pleadings and during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the ground
that they amount to an unlawful deprivation of the States ownership over lands of the public domain as well as minerals
and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the
Constitution:
(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines
ancestral lands;
(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies
of water, mineral and other resources found within ancestral domains are private but community property of the
indigenous peoples;
(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands;
(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands;
(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction, development or
exploration of minerals and other natural resources within the areas claimed to be their ancestral domains, and the right
333
to enter into agreements with nonindigenous peoples for the development and utilization of natural resources therein
for a period not exceeding 25 years, renewable for not more than 25 years; and
(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the
ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife
sanctuaries, wilderness, protected areas, forest cover or reforestation.[2]
Petitioners also content that, by providing for an all-encompassing definition of ancestral domains and ancestral lands
which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private
landowners.[3]
In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making
customary law applicable to the settlement of disputes involving ancestral domains and ancestral lands on the ground
that these provisions violate the due process clause of the Constitution.[4]
These provisions are:
(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains and which vest
on the NCIP the sole authority to delineate ancestral domains and ancestral lands;
(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral domain and
upon notification to the following officials, namely, the Secretary of Environment and Natural Resources, Secretary of
Interior and Local Governments, Secretary of Justice and Commissioner of the National Development Corporation, the
jurisdiction of said officials over said area terminates;
(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be applied first
with respect to property rights, claims of ownership, hereditary succession and settlement of land disputes, and that any
doubt or ambiguity in the interpretation thereof shall be resolved in favor of the indigenous peoples;
(4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving indigenous
peoples; and
(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the indigenous
peoples.[5]
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of 1998,
which provides that the administrative relationship of the NCIP to the Office of the President is characterized as a lateral
but autonomous relationship for purposes of policy and program coordination. They contend that said Rule infringes
upon the Presidents power of control over executive departments under Section 17, Article VII of the Constitution.[6]
Petitioners pray for the following:
(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of R.A. 8371 are
unconstitutional and invalid;
(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to cease and desist
from implementing the assailed provisions of R.A. 8371 and its Implementing Rules;
(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and Natural
Resources to cease and desist from implementing Department of Environment and Natural Resources Circular No. 2,
series of 1998;
(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and desist from
disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and
334
(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural Resources to comply
with his duty of carrying out the States constitutional mandate to control and supervise the exploration, development,
utilization and conservation of Philippine natural resources.[7]
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo,
Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno also filed a
separate opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP
Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the IPRA
which he contends should be interpreted as dealing with the large-scale exploitation of natural resources and should be
read in conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to
dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have
standing to question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion expressing
the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves
judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of
specific cases by those whose rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion
expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated
upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the
Rules of Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug, Kapunan, Mendoza,
and Panganiban.
SO ORDERED.
[G.R. No. 149036. April 2, 2002]
MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A.
TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services
Department of the Commission on Elections, respondents.
DECISION
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a
temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag
(Petitioner for brevity) questions the constitutionality of the appointment and the right to hold office of the following:
(1) Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the Commission on Elections (COMELEC for brevity); and
(2) Resurreccion Z. Borra (Borra for brevity) and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco[1] (Cinco for brevity) as
Director IV of the COMELECs Education and Information Department (EID for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director IV of the EID. On February 15, 2000,
then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a Temporary
capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the
same position in a Temporary capacity.[2]
335
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,[3] and
Borra[4] and Tuason[5] as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008.
Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their
oaths of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for
confirmation.[6] However, the Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same
positions and for the same term of seven years, expiring on February 2, 2008.[7] They took their oaths of office for a
second time. The Office of the President transmitted on June 5, 2001 their appointments to the Commission on
Appointments for confirmation.[8]
Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001,
President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same
positions.[9] The Office of the President submitted their appointments for confirmation to the Commission on
Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001[11] addressed to petitioner
as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to
petitioners reassignment in a Memorandum dated April 14, 2001[12] addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the
reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment
to the Law Department.[13] Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001,
reminding heads of government offices that transfer and detail of employees are prohibited during the election period
beginning January 2 until June 13, 2001. Benipayo denied her request for reconsideration on April 18, 2001,[14] citing
COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the
Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is
hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after
due notice and hearing.
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated
April 23, 2001.[15] Petitioner also filed an administrative and criminal complaint[16] with the Law Department[17]
against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC
Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil
service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the
appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the
COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the
constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and members. Petitioner also assails as illegal her removal as
Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements
made by COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason
by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments
of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years
expiring on February 2, 2008.[18] They all took their oaths of office anew.
336
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial
review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments
issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the
Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are
legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same
positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to
the Law Department is illegal and without authority, having been done without the approval of the COMELEC as a
collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of
judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with
this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments
issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the
existence of an actual and appropriate controversy; (2) a personal and substantial interest of the party raising the
constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the
constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a
result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point
out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the
earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interim
appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed
after the third time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law
Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was
placed on detail service.[20] Respondents claim that the reassignment was pursuant to x x x Benipayos authority as
Chairman of the Commission on Elections, and as the Commissions Chief Executive Officer.[21] Evidently, respondents
anchor the legality of petitioners reassignment on Benipayos authority as Chairman of the COMELEC. The real issue then
turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of
the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by
the Constitution.
337
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the
Constitution, then petitioners reassignment is legal and she has no cause to complain provided the reassignment is in
accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the
constitutionality of Benipayos assumption of office. Petitioners personal and substantial injury, if Benipayo is not the
lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim
appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that
determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, if it is
not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal.[22] Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra
and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound
discretion, the time when a constitutional issue may be passed upon.[23] There is no doubt petitioner raised the
constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interim appointment
and assumption of office. Unless the constitutionality of Benipayos ad interim appointment and assumption of office is
resolved, the legality of petitioners reassignment from the EID to the Law Department cannot be determined. Clearly,
the lis mota of this case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and
decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty to determine whether other
agencies of government have remained within the limits of the Constitution and have not abused the discretion given
them, this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised.[24] Here
the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which provides as follows:
The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity. (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure,
and can even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner
claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of
Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional
commissions, namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2),
Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service
Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article
IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission
on Appointments for only then does his appointment become permanent and no longer temporary in character.
338
The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments
can guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or
members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to
his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can
be terminated at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every
appointee whose confirmation is pending with the Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be
withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim
appointment permanent in character by making it effective until disapproved by the Commission on Appointments or
until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as
follows:
The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress. (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no
longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and
for any reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In
Summers vs. Ozaeta,[25] decided on October 25, 1948, we held that:
x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution,
which provides that the President shall have the power to make appointments during the recess of the Congress, but
such appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is
disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is
issued. (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim
appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the
powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,[26] this Court elaborated
on the nature of an ad interim appointment as follows:
A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session and when it is in recess. In the former, the President
nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office.
It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and
perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the
appointment is effective until disapproval by the Commission on Appointments or until the next adjournment of the
Congress.
Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime or for the time being.
Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not
new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,[27] where
we explained that:
x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation.
Private respondent had been extended several ad interim appointments which petitioner mistakenly understands as
339
appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which creates such belief.
The term is defined by Black to mean in the meantime or for the time being. Thus, an officer ad interim is one appointed
to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular
incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in
the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is,
done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the
University Charter with the power of appointment, is unable to act. x x x. (Emphasis supplied)
Thus, the term ad interim appointment, as used in letters of appointment signed by the President, means a permanent
appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary
appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the
Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to
explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals,[28]
where the Court stated:
We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is,
it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in
which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU
President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private
respondents appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board disapproves them. (Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and
therefore part of the civil service. He enjoys the constitutional protection that [n]o officer or employee in the civil
service shall be removed or suspended except for cause provided by law.[29] Thus, an ad interim appointment becomes
complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim
appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal
or revocation thereafter is tantamount to removal from office.[30] Once an appointee has qualified, he acquires a legal
right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of
Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory
conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions
constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power.[31]
A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of
appointment that the Constitution prohibits the President from making to the three independent constitutional
commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court struck down as unconstitutional the
designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause
need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman
of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever
reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from
challenging its withdrawal.
xxx
340
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among
which is the security of tenure of its members. That guarantee is not available to the respondent as Acting Chairman of
the Commission on Elections by designation of the President of the Philippines.
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935 Constitution, which did not have a provision
prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the
designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of an acting
Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared
then: It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a
permanent Commissioner than to designate one to act temporarily. (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC,
subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended
permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or
acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac[34] and Solicitor General Felix Bautista in
Nacionalista Party vs. Bautista.[35] The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by
the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect
immediately.
While the Constitution mandates that the COMELEC shall be independent[36], this provision should be harmonized with
the Presidents power to extend ad interim appointments. To hold that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will
negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to
give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the
Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by
the Commission on Appointments - did not provide for ad interim appointments. The original intention of the framers of
the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in
essential government services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following discussion during the deliberations of the Constitutional
Commission elucidates this:
FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for
ad interim appointments? Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating
interruption of government business, considering that we are not certain of the length of involuntary recess or
adjournment of the Congress. We are certain, however, of the involuntary adjournment of the Congress which is 30
days, but we cannot leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the
Committee, Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16, the
wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS
DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF
THE CONGRESS.
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This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a
paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the amendment is approved.[37]
(Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the
purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in
government offices, including the three constitutional commissions. In his concurring opinion in Guevara vs.
Inocentes,[38] decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad
interim appointments in this manner:
Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress,
the evil sought to be avoided interruption in the discharge of essential functions may take place. Because the same evil
would result if the appointments ceased to be effective during the session of Congress and before its adjournment.
Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of
other ad interim appointments or reappointments. (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the
interruption of essential government services in the May 2001 national elections. Following the decision of this Court in
Gaminde vs. Commission on Appointments,[39] promulgated on December 13, 2000, the terms of office of
constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987, the
date of ratification of the Constitution, regardless of the date of their actual appointment. By this reckoning, the terms
of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her
appointment papers, until February 15, 2002,[41] the original expiry date of the term of her predecessor, Justice
Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita Dy-
Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001.[42] The
original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were
therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling,
there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half
months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001
and did not question any more before this Court the applicability of the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou
stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing her successor might
create a constitutional crisis in view of the proximity of the May 2001 national elections. Commissioner Desamito chose
to file a petition for intervention[44] in the Gaminde case but this Court denied the intervention. Thus, Commissioner
Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June considering that many
of the members of the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress
adjourned from January 9, 2001 to June 3, 2001.[45] Concededly, there was no more time for Benipayo, Borra and
Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the
Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001
elections. Considering that the Constitution requires that all x x x election cases shall be heard and decided in
division,[46] the remaining one division would have been swamped with election cases. Moreover, since under the
Constitution motions for reconsideration shall be decided by the Commission en banc, the mere absence of one of the
four remaining members would have prevented a quorum, a less than ideal situation considering that the
Commissioners are expected to travel around the country before, during and after the elections. There was a great
342
probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III
events, was certainly essential in safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments
prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound
judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of
two modes in appointing officials who are subject to confirmation by the Commission on Appointments. First, while
Congress is in session, the President may nominate the prospective appointee, and pending consent of the Commission
on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the President
may extend an ad interim appointment which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter
within the prerogative of the President because the Constitution grants her that power. This Court cannot inquire into
the propriety of the choice made by the President in the exercise of her constitutional power, absent grave abuse of
discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President
Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.[47] Former President Fidel V.
Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-
Claravall and Manolo F. Gorospe.[48] Former President Joseph Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the
appointing and confirming powers. This situation, however, is only for a short period - from the time of issuance of the
ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself
sanctions this situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the
check-and-balance under the separation of powers, as a trade-off against the evil of granting the President absolute and
sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to the checking power of
the legislature.
This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The
vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed
appointments, and not one President will appoint all the COMELEC members.[50] In the instant case, the Commission on
Appointments had long confirmed four[51] of the incumbent COMELEC members, comprising a majority, who could now
be removed from office only by impeachment. The special constitutional safeguards that insure the independence of the
COMELEC remain in place.[52] The COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased
during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as
COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments prohibited by
Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo,
Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent assumption
of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution, which provides as follows:
The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last members for three years, without reappointment. X x x.
(Emphasis supplied)
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Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim
appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which
prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed
office, which is the situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in
character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be
extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of
its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a
refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee.
Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the
appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not
because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to
organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the
Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on
Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision,
the President is free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of
the Rules of the Commission on Appointments, which provides as follows:
Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted
by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be
returned to the President and, unless new nominations or appointments are made, shall not again be considered by the
Commission. (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the
President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees.
Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes[53] why by-passed ad
interim appointees could be extended new appointments, thus:
In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent
can not continue holding office over the positive objection of the Commission. It ceases, also, upon the next
adjournment of the Congress, simply because the President may then issue new appointments - not because of implied
disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the
Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of
Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no
longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus
clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof
allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the
Congress, the President is free to make ad interim appointments or reappointments. (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the
present Constitution on ad interim appointments was lifted verbatim.[54] The jurisprudence under the 1935
Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution.
The established practice under the present Constitution is that the President can renew the appointments of by-passed
ad interim appointees. This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted
only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing
power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-
passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim
344
appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment
can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners shall be appointed x x
x for a term of seven years without reappointment. (Emphasis supplied) There are four situations where this provision
will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission
on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a
member or as a chairman, because he will then be actually serving more than seven years. The second situation is where
the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends.
Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years. The third situation is where the
appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises
from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person
to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second
sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the
Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any
situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC
member whether for a full term of seven years, a truncated term of five or three years, or even for an unexpired term of
any length of time can no longer be reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in
this manner:
MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs.
Miraflor, to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years.
But in cases where the appointee serves only for less than seven years, he would be entitled to reappointment. Unless
we put the qualifying words without reappointment in the case of those appointed, then it is possible that an
interpretation could be made later on their case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the
Constitution, no reappointment can be made.[55] (Emphasis supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera[57] that a
[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his
term will not exceed nine years in all. This was the interpretation despite the express provision in the 1935 Constitution
that a COMELEC member shall hold office for a term of nine years and may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2), Article IX-C of the
present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven
years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years
pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously
appointed completes his term of office for the intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither
a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start
and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments.
This interpretation renders inutile the confirming power of the Commission on Appointments.
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The phrase without reappointment applies only to one who has been appointed by the President and confirmed by the
Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation
by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply.
To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim
appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will
certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by
mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad
interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe
to a proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who
have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that
the members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in
the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who sponsored[58]the proposed articles on
the three constitutional commissions, outlined the four important features of the proposed articles, to wit:
Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three
Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed term
of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity
of the President to appoint all the members during his incumbency; 3) prohibition to decrease salaries of the members
of the Commissions during their term of office; and 4) appointments of members would not require confirmation.[59]
(Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to these four features.
First, as discussed earlier, the framers of the Constitution decided to require confirmation by the Commission on
Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further
the prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit
remaining in office for 12 years despite his fixed term of seven years. The following exchange in the deliberations of the
Constitutional Commission is instructive:
MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to
Section 2 (2) on the Civil Service Commission wherein it is stated: In no case shall any Member be appointed in a
temporary or acting capacity. I detect in the Committees proposed resolutions a constitutional hangover, if I may use the
term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular
provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting
capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was
appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he
occupied that position for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of
the commissions does not serve beyond 7 years.[60] (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any
kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The purpose of the
last sentence is to make sure that this does not happen by including in the appointment both temporary and acting
capacities."[61] (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the
other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the
prohibition on reappointment that may result in an appointees total term of office exceeding seven years. The evils
346
sought to be avoided by the twin prohibitions are very specific - reappointment of any kind and exceeding ones term in
office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws
on those who might wish to extend their terms of office. Thus, the word designated was inserted to plug any loophole
that might be exploited by violators of the Constitution, as shown in the following discussion in the Constitutional
Commission:
MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to insert the words OR DESIGNATED so
that the whole sentence will read: In no case shall any Member be appointed OR DESIGNATED in a temporary or acting
capacity.
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case shall any Member be appointed in
a temporary or acting capacity.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction
between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit
Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he
was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction
between appointment and designation, we should specifically place the word so that there will be no more ambiguity. In
no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is
approved.[62]
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate
the prohibition on reappointments because there were no previous appointments that were confirmed by the
Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim
appointments and renewals of appointments will also not breach the seven-year term limit because all the
appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2,
2008.[63] Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is
no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of
the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim
appointment of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate
the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such
reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office
without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the
COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full
authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under
Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested
with the following power:
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Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of
the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service
Law. (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or
reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not
required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes
X, Y and Z to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or
temporary capacity.[64] Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career
Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service Commission.[65] Obviously, petitioner does not enjoy
security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this Court held
that:
As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in
Achacoso v. Macaraig:
It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the
position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best,
therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the
appointing authority and at a moments notice, conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its
occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his
appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so designated x x x.
Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to
hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil
Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn
or revoked at the pleasure of the appointing power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h)
of the Omnibus Election Code, which provides as follows:
Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including public school teachers, within the election period
except upon prior approval of the Commission.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election period.[67] Moreover, petitioner insists that the COMELEC en
banc must concur to every transfer or reassignment of COMELEC personnel during the election period.
348
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6,
2000,[68] exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part:
WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
(h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including public school teachers, within the election period
except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the
prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and
credible elections;
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the
Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is
hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after
due notice and hearing. (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can
be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office
personnel like the petitioner. Under the Revised Administrative Code,[69] the COMELEC Chairman is the sole officer
specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically
exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative
Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry
the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will
render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an
approval to effect transfers and reassignments of personnel, without need of securing a second approval from the
COMELEC en banc to actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The
person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300,
approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayos order
reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election
Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services
Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other
emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.
349
EDGARDO V. ESTARIJA, v EDWARD F. RANADA and the Honorable OMBUDSMAN Aniano A. Desierto (now succeeded by
Hon. Simeon Marcelo), and his Deputy OMBUDSMAN for Mindanao, Hon. Antonio E. Valenzuela, G. R. No. 159314
This petition for review on certiorari assails the February 12, 2003 Decision[1] of the Court of Appeals in CA-G.R. SP No.
62557 which affirmed the October 2, 2000 Decision[2] of the Office of the Ombudsman-Mindanao in OMB-MIN-ADM-
98-183.
The facts are as follows:
On August 10, 1998, respondent Edward F. Ranada, a member of the Davao Pilots Association, Inc. (DPAI) and Davao
Tugboat and Allied Services, Inc., (DTASI) filed an administrative complaint for Gross Misconduct before the Office of the
Ombudsman-Mindanao, against petitioner Captain Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority
(PPA), Port of Davao, Sasa, Davao City.[3]
The complaint alleged that Estarija, who as Harbor Master issues the necessary berthing permit for all ships that dock in
the Davao Port, had been demanding monies ranging from P200 to P2000 for the approval and issuance of berthing
permits, and P5000 as monthly contribution from the DPAI. The complaint alleged that prior to August 6, 1998, in order
to stop the mulcting and extortion activities of Estarija, the association reported Estarijas activities to the National
Bureau of Investigation (NBI). On August 6, 1998, the NBI caught Estarija in possession of the P5,000 marked money
used by the NBI to entrap Estarija.
Consequently, the Ombudsman ordered petitioners preventive suspension[4] and directed him to answer the complaint.
The Ombudsman filed a criminal case docketed as Criminal Case No. 41,464-98, against Estarija for violation of Republic
Act No. 3019, The Anti-Graft and Corrupt Practices Act, before the Regional Trial Court of Davao City, Branch No. 8.[5]
In his counter-affidavit[6] and supplemental counter-affidavit,[7] petitioner vehemently denied demanding sums of
money for the approval of berthing permits. He claimed that Adrian Cagata, an employee of the DPAI, called to inform
him that the DPAI had payables to the PPA, and although he went to the associations office, he was hesitant to get the
P5,000 from Cagata because the association had no pending transaction with the PPA. Estarija claimed that Cagata made
him believe that the money was a partial remittance to the PPA of the pilotage fee for July 1998 representing 10% of the
monthly gross revenue of their association. Nonetheless, he received the money but assured Cagata that he would send
an official receipt the following day. He claimed that the entrapment and the subsequent filing of the complaint were
part of a conspiracy to exact personal vengeance against him on account of Ranadas business losses occasioned by the
cancellation of the latters sub-agency agreement with Asia Pacific Chartering Phil., Inc., which was eventually awarded
to a shipping agency managed by Estarijas son.
On August 31, 2000, the Ombudsman rendered a decision[8] in the administrative case, finding Estarija guilty of
dishonesty and grave misconduct. The dispositive portion reads:
WHEREFORE, premises considered, there being substantial evidence, respondent EDGARDO V. ESTARIJA is hereby found
guilty of Dishonesty and Grave Misconduct and is hereby DISMISSED from the service with forfeiture of all leave credits
and retirement benefits, pursuant to Section 23(a) and (c) of Rule XIV, Book V, in relation to Section 9 of Rule XIV both of
the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292). He is
disqualified from re-employment in the national and local governments, as well as in any government instrumentality or
agency, including government owned or controlled corporations. This decision is immediately executory after it attains
finality. Let a copy of this decision be entered in the personal records of respondent EDGARDO V. ESTARIJA.
PPA Manager Manuel C. Albarracin is hereby directed to implement this Office Decision after it attains finality.
SO DECREED.[9]
Estarija seasonably filed a motion for reconsideration.[10] Estarija claimed that dismissal was unconstitutional since the
Ombudsman did not have direct and immediate power to remove government officials, whether elective or appointive,
who are not removable by impeachment. He maintains that under the 1987 Constitution, the Ombudsmans
administrative authority is merely recommendatory, and that Republic Act No. 6770, otherwise known as The
Ombudsman Act of 1989, is unconstitutional because it gives the Office of the Ombudsman additional powers that are
not provided for in the Constitution.
The Ombudsman denied the motion for reconsideration in an Order[11] dated October 31, 2000. Thus, Estarija filed a
Petition for Review with urgent prayer for the issuance of a temporary restraining order and writ of preliminary
prohibitory injunction before the Court of Appeals. The Court of Appeals, on February 12, 2003, dismissed the petition
and affirmed the Ombudsmans decision.
The Court of Appeals held that the attack on the constitutionality of Rep. Act No. 6770 was procedurally and
substantially flawed. First, the constitutionality issue was belatedly raised in the motion for reconsideration of the
decision of the Ombudsman. Second, the petitioner was unable to prove the constitutional breach and failed to
overcome the presumption of constitutionality in favor of the questioned statute.
350
The Court of Appeals affirmed the decision of the Ombudsman, holding that receiving extortion money constituted
dishonesty and grave misconduct. According to the Court of Appeals, petitioner failed to refute the convincing evidence
offered by the complainant. Petitioner presented affidavits executed by the high-ranking officials of various shipping
agencies which were found by the Court of Appeals to be couched in general and loose terms, and according to the
appellate court, could not be given more evidentiary weight than the sworn testimonies of complainant and other
witnesses that were subjected to cross-examination.
Petitioner filed a motion for reconsideration but the Court of Appeals denied the same for lack of merit. Hence, the
instant petition assigning the following errors:
(A) That certain basic factual findings of the Court of Appeals as hereunder specified, are not borne by any
substantial evidence, or are contrary to the evidence on record, or that the Court of Appeals has drawn a conclusion or
inference which is manifestly mistaken or is based on a misappreciation of the facts as to call for a corrective review by
this Honorable Supreme Court;
(B) That Republic Act No. 6770, otherwise known as the Ombudsmans Act of 1989, is unconstitutional, or that the
Honorable OMBUDSMAN does not have any constitutional direct and immediate power, authority or jurisdiction to
remove, suspend, demote, fine or censure, herein Petitioner and all other government officials, elective or appointive,
not removable by impeachment, consistent with Sec. 13, par. No. (3), Art XI, of the 1987 Philippine Constitution.
(C) That corollary to, or consistent with, the aforecited Second Reason, said REPUBLIC ACT No. 6770, as amended,
is constitutionally impaired and invalid insofar as it is inconsistent with, or violative of, the aforecited constitutional
provisions (Sec 13, No. 3, Art XI).
(D) That the issue of jurisdiction or constitutionality or validity of a law, statute, rule or regulation can be raised at
any stage of the case, even by way of a motion for reconsideration after a decision has been rendered by the court or
judicial arbiter concerned.
(E) That the DECISION of the Court of Appeals is contrary to jurisprudential law, specifically to the ruling of this
Honorable SUPREME COURT in the case of Renato A. Tapiador, Petitioner versus Office of the Ombudsman and Atty.
Ronaldo P. Ledesma, Respondents, G.R No. 129124 decided on March 15, 2002.
(F) That assuming arguendo that the Honorable OMBUDSMAN does have such direct constitutional power to
remove, suspend, etc. government officials not removable by impeachment, the DECISION rendered in said case OMB-
MIN-ADM-98-[183], finding Petitioner guilty of Dishonesty and Grave Misconduct and directing his dismissal from the
service, with forfeiture of all leave credits and retirement benefits xxx, is still contrary to law and the evidence on record,
or, at the very least, the charge of Dishonesty is not included in RANADAs administrative complaint and absolutely no
evidence was presented to prove Dishonesty and the complaint which was limited to [Grave] Misconduct only;
(G) That further assuming arguendo that Petitioner is subject to direct administrative disciplinary authority by the
Honorable OMBUDSMAN whether under the Constitution or RA 6770, and assuming that he is guilty of Dishonesty and
Grave Misconduct, the Court of Appeals violated Sec. 25 of R.A. 6770 for not considering and applying, several mitigating
circumstances in favor of Petitioner and that the penalty (of dismissal with loss of benefits) imposed by OMBUDSMAN is
violative of Sec. 25, of R.A. 6770 and is too harsh, inhumane, violative of his human dignity, human rights and his other
constitutional right not to be deprived of his property and/or property rights without due process, is manifestly
unproportionate to the offense for which Petitioner is being penalized, and, should, therefore, be substantially modified
or reduced to make it fair, reasonable, just, humane and proportionate to the offense committed. (Emphasis
supplied).[12]
Essentially, the issues for our resolution are: First, Is there substantial evidence to hold petitioner liable for dishonesty
and grave misconduct? Second, Is the power of the Ombudsman to directly remove, suspend, demote, fine or censure
erring officials unconstitutional?
On the first issue, petitioner claims that the factual findings of the Court of Appeals are not supported by substantial
evidence, and that the Court of Appeals misappreciated the facts of the case.
Petitioner contends that he cannot be liable for grave misconduct as he did not commit extortion. He insists that he was
merely prodded by Adrian Cagata to receive the money. He claims that as a bonded official it was not wrong for him to
receive the money and he had authority to assist the agency in the collection of money due to the agency, e.g. payment
for berthing permits. Moreover, he argues that the signing of berthing permits is only ministerial on his part and he does
not have influence on their approval, which is the function of the berthing committee. Consequently, he avers, it makes
no sense why he would extort money in consideration of the issuance of berthing permits.
We note that indeed petitioner has no hand in the approval of berthing permits. But, it is undisputed that he does
decide on the berthing space to be occupied by the vessels. The berthing committee likewise consults him on technical
matters. We note, too, that he claims he was only instructed to receive the money from Cagata, yet he admits that there
was no pending transaction between the PPA and the DPAI.
351
In his Comment, the Ombudsman, through the Solicitor General, counters that petitioner raised questions of facts which
are not reviewable by this Court. He argued that contrary to the petitioners claim, the judgment of guilt for dishonesty
and grave misconduct was based on the evidence presented. Petitioner was caught red-handed in an entrapment
operation by the NBI. According to the Ombudsman, the entrapment of the petitioner met the test for a valid
entrapment i.e. the conduct of the law enforcement agent was not likely to induce a normally law-abiding person, other
than one who is ready and willing to commit the offense. The presumption in entrapment is that a law abiding person
would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully.
Entrapment is contingent on the accuseds predisposition to commit the offense charged, his state of mind, and his
inclination before his exposure to government agents. Thus, entrapment is not made ineffectual by the conduct of the
entrapping officers. When Estarija went to the office of Adrian Cagata to pick up the money, his doing so was indicative
of his willingness to commit the crime.
In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence, that
amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.[13] Further,
precedents tell us that the factual findings of the Office of the Ombudsman when supported by substantial evidence are
conclusive,[14] and such findings made by an administrative body which has acquired expertise are accorded not only
respect but even finality.[15]
As shown on the records, Estarija called the office of the DPAI and demanded the payment of the monthly contribution
from Captain Zamora. Captain Zamora conveyed the demand to Ranada who in turn reported the matter to the NBI.
Thereafter, an entrapment operation was staged. Adrian Cagata called Estarija to confirm the payment, and that the
money was already available at their office. Accordingly, Estarija went to the DPAI office and collected the P5,000
marked money. Upon departure of Estarija from the office, the NBI operatives frisked him and recovered the P5,000
marked money.
We are unconvinced by Estarijas explanation of his conduct. He does not deny that he went to the DPAI office to collect
the money and that he actually received the money. Since there was no pending transaction between the PPA and the
DPAI, he had no reason to go to the latters office to collect any money. Even if he was authorized to assist in the
collection of money due the agency, he should have issued an official receipt for the transaction, but he did not do so.
All told, we are convinced that there is substantial evidence to hold petitioner liable for grave misconduct.
Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or
gross negligence by a public officer. And when the elements of corruption, clear intent to violate the law or flagrant
disregard of established rule are manifest, the public officer shall be liable for grave misconduct.[16] We are convinced
that the decision of the Ombudsman finding petitioner administratively liable for grave misconduct is based on
substantial evidence. When there is substantial evidence in support of the Ombudsmans decision, that decision will not
be overturned.[17]
The same findings sustain the conclusion that Estarija is guilty of dishonesty. The term dishonesty implies disposition to
lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity, lack of honesty, probity or integrity in principle, lack
of fairness and straightforwardness, disposition to defraud, deceive or betray.[18] Patently, petitioner had been
dishonest about accepting money from DPAI.
Now, the issue pending before us is: Does the Ombudsman have the constitutional power to directly remove from
government service an erring public official?
At the outset, the Court of Appeals held that the constitutional question on the Ombudsmans power cannot be
entertained because it was not pleaded at the earliest opportunity. The Court of Appeals said that petitioner had every
opportunity to raise the same in his pleadings and during the course of the trial. Instead, it was only after the adverse
decision of the Ombudsman that he was prompted to assail the power of the Ombudsman in his motion for
reconsideration. The Court of Appeals held that the constitutional issue was belatedly raised in the proceedings before
the Ombudsman, thus, it cannot be considered on appeal.
When the issue of unconstitutionality of a legislative act is raised, the Court may exercise its power of judicial review
only if the following requisites are present: (1) an actual and appropriate case and controversy; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question raised is the very lis mota of the case.[19]
For our purpose, only the third requisite is in question. Unequivocally, the law requires that the question of
constitutionality of a statute must be raised at the earliest opportunity. In Matibag v. Benipayo,[20] we held that the
earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can
resolve the same, such that, if it was not raised in the pleadings before a competent court, it cannot be considered at
the trial, and, if not considered in the trial, it cannot be considered on appeal.
352
In Matibag, President Gloria Macapagal-Arroyo appointed, ad interim, Alfredo L. Benipayo as Chairman of the
Commission on Elections (COMELEC). Ma. J. Angelina G. Matibag was the Director IV of the Education and Information
Department (EID) but Benipayo reassigned her to the Law Department. Matibag sought reconsideration of her relief as
Director of the EID and her reassignment to the Law Department. Benipayo denied her request for reconsideration.
Consequently, Matibag appealed the denial of her request to the COMELEC en banc. In addition, Matibag filed a
complaint against Benipayo before the Law Department for violation of the Civil Service Rules and election laws. During
the pendency of her complaint before the Law Department, Matibag filed a petition before this Court assailing the
constitutionality of the ad interim appointment of Benipayo and the other COMELEC Commissioners. We held that the
constitutional issue was raised on time because it was the earliest opportunity for pleading the constitutional issue
before a competent body.
In the case of Umali v. Guingona, Jr.,[21] the question of the constitutionality of the creation of the Presidential
Commission on Anti-Graft and Corruption (PCAGC) was raised in the motion for reconsideration after the Regional Trial
Court of Makati rendered a decision. When appealed, the Court did not entertain the constitutional issue because it was
not raised in the pleadings in the trial court. In that case, the Court did not exercise judicial review on the constitutional
question because it was belatedly raised and not properly pleaded, thus, it cannot be considered by the Court on appeal.
In this case, petitioner raised the issue of constitutionality of Rep. Act No. 6770 in his motion for the reconsideration of
the Ombudsmans decision. Verily, the Ombudsman has no jurisdiction to entertain questions on the constitutionality of
a law. Thus, when petitioner raised the issue of constitutionality of Rep. Act No. 6770 before the Court of Appeals, which
is the competent court, the constitutional question was raised at the earliest opportune time. Furthermore, this Court
may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.[22]
In assailing the constitutionality of Rep. Act No. 6770, petitioner contends that the Ombudsman has only the powers
enumerated under Section 13,[23] Article XI of the Constitution; and that such powers do not include the power to
directly remove, suspend, demote, fine, or censure a government official. Its power is merely to recommend the action
to the officer concerned. Moreover, petitioner, citing Tapiador v. Office of the Ombudsman,[24] insists that although the
Constitution provides that the Ombudsman can promulgate its own rules of procedure and exercise other powers or
perform such functions or duties as may be provided by law,
Sections 15,[25] 21,[26] 22[27] and 25[28] of Rep. Act No. 6770 are inconsistent with Section 13, Article XI of the
Constitution because the power of the Ombudsman is merely to recommend appropriate actions to the officer
concerned.
For the State, the Solicitor General maintains that the framers of the 1987 Constitution did not intend to spell out,
restrictively, each act which the Ombudsman may or may not do, since the purpose of the Constitution is to provide
simply a framework within which to build the institution. In addition, the Solicitor General avers that what petitioner
invoked was merely an obiter dictum in the case of Tapiador v. Office of the Ombudsman.
We find petitioners contentions without merit. Among the powers of the Ombudsman enumerated in Section 13, Article
XI of the Constitution are:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as of any government owned or controlled corporation with
original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.
3. Direct the Officer concerned to take appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to
furnish it with copies of documents relating to contracts or transactions entered into by his office involving the
disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for
appropriate action.
5. Request any government agency for assistance and information necessary in the discharge of its responsibilities,
and to examine, if necessary, pertinent records and documents.
6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and
make recommendations for their elimination and the observance of high standards of ethics and efficiency.
353
8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be
provided by law.
Rep. Act No. 6770 provides for the functional and structural organization of the Office of the Ombudsman. In passing
Rep. Act No. 6770, Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by
public officers and employees to make him a more active and effective agent of the people in ensuring accountability in
public office.[29] Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement
his own actions.[30]
In Ledesma v. Court of Appeals,[31] we held that Rep. Act No. 6770 is consistent with the intent of the framers of the
1987 Constitution. They gave Congress the discretion to give the Ombudsman powers that are not merely persuasive in
character. Thus, in addition to the power of the Ombudsman to prosecute and conduct investigations, the lawmakers
intended to provide the Ombudsman with the power to punish for contempt and preventively suspend any officer under
his authority pending an investigation when the case so warrants. He was likewise given disciplinary authority over all
elective and appointive officials of the government and its subdivisions, instrumentalities and agencies except members
of Congress and the Judiciary.
We also held in Ledesma that the statement in Tapiador v. Office of the Ombudsman that made reference to the power
of the Ombudsman is, at best, merely an obiter dictum and cannot be cited as a doctrinal declaration of this Court.[32]
Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and functions. Expounding
on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote
Commissioners Colayco and Monsod during the interpellation by Commissioner Rodrigo in the Constitutional
Commission of 1986 on the debates relative to the power of the Ombudsman:
MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says
that:
The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except those conferred on the
office of the Ombudsman created under this Constitution.
The powers of the Ombudsman are enumerated in Section 12.
MR. COLAYCO: They are not exclusive.
MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan?
MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive.
MR. RODRIGO: Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: to exercise
such powers or perform such functions or duties as may be provided by law. So, the legislature may vest him with
powers taken away from the Tanodbayan, may it not?
MR. COLAYCO: Yes.
MR. MONSOD: Yes.
xxxx
MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman
are such functions or duties as may be provided by law. x x x
MR. COLAYCO: Madam President, that is correct.
MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee.
What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of
the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of
the citizen.
354
However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see fit, may have to give
additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the
Constitution.
MR. RODRIGO: Madam President, what I am worried about is, if we create a constitutional body which has neither
punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and
then disappoint them.
MR. MONSOD: I agree with the Commissioner.
MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the
legislature, why not leave this to the legislature?
MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which
recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding
the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main
thrust; instead it created the Tanodbayan (2 record, 270-271). (emphasis supplied)
xxxx
MR. MONSOD (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the [H]onorable
Commissioner has looked at it in too much of an absolutist position. The Ombudsman is seen as a civil advocate or a
champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth
and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he
is being brought up to the same level as the President.
With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in
its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law
in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should
prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers
the Ombudsman need in order that he be more effective. This is not foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (emphasis supplied).[33]
Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution,
but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of
Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring
officials and employees, except members of Congress, and the Judiciary.[34] To conclude, we hold that Sections 15, 21,
22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective.
Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional
power to directly remove from government service an erring public official other than a member of Congress and the
Judiciary.
WHEREFORE, the petition is DENIED. The assailed Decision dated February 12, 2003 of the Court of Appeals in CA-G.R. SP
No. 62557 and Resolution dated July 28, 2003 are hereby AFFIRMED.
G.R. No. L-46267 November 28, 1938
FRANCISCO ZANDUETA, petitioner,

vs.
SIXTO DE LA COSTA, respondent.
Vicente J. Francisco and Francisco Zandueta for petitioner.

Solicitor-General Ozaeta and Ramon Diokno for respondent.
355
VILLA-REAL, J.:
This is a quo warranto proceeding instituted by the Honorable Francisco Zandueta against the Honorable Sixto de la
Costa to obtain from this court a judgment declaring the respondent to be illegally occupying the office of Judge of the
Fifth Branch of the Court of First Instance of Manila, Fourth Judicial District, ousting him from said office, and holding
that the petitioner is entitled to continue occupying the office in question by placing him in possession thereof, with
costs to said respondent.
Prior to the promulgation of Commonwealth Act No. 145, the petitioner, the Honorable Francisco Zandueta was
discharging the office of judge of first instance, Ninth Judicial District, comprising solely the City of Manila, and was
presiding over the Fifth Branch of the Court of First Instance of said city, by virtue of an ad interim appointment issued
by the President of the Philippines in his favor on June 2, 1936, and confirmed by the Commission on Appointments of
the National Assembly on September 8th of the same year.
On November 7, 1936, the date on which Commonwealth Act No. 145, otherwise known as the Judicial
Reorganization Law, took effect, the petitioner received from the President of the Commonwealth a new ad interim
appointment as judge of first instance, this time of the Fourth Judicial District, with authority to preside over the Courts
of First Instance of Manila and Palawan, issued in accordance with said Act. As the National Assembly adjourned on
November 20, 1937, without its Commission on Appointments having acted on said ad interim appointment, another ad
interim appointment to the same office was issued in favor of said petitioner, pursuant to which he took a new oath on
November 22, 1937, before discharging the duties thereof. After his appointment and qualification as judge of first
instance of the Fourth Judicial District, the petitioner, acting as executive judge, performed several executive acts, some
of which consist in the designation of the assistant clerk of the Court of First Instance of Manila, Ladislao Pasicolan, as
administrative officer, under the orders of the petitioner, as executive judge of said court, to take charge of all matters
pertaining to the Court of First Instance of Palawan, which are handled by said execute judge in Manila (Exhibit 2); in the
appointment of attorney Rufo M. San Juan as notary public for the Province of Palawan, said appointment to expire on
December 31, 1938 (Exhibit 3); in having authorized justice of the peace Iigo R. Pea to defend a criminal case the
hearing of which had begun during the past sessions in Coron, Palawan (Exhibit 5); in having granted a leave of absence
of ten days to justice of the peace Abordo (of Puerto Princesa), Palawan (Exhibit 8); and in having granted a leave of
absence of thirteen days to the justice of the peace of Coron, Palawan (Exhibit 9).
On May 19, 1938, the Commission on Appointments of the National Assembly disapproved the aforesaid ad interim
appointment of said petitioner, who was advised thereof by the Secretary of Justice on the 20th of said month and year.
On August 1, 1938, the President of the Philippines appointed the herein respondent, Honorable Sixto de la Costa, judge
of first instance of the Fourth Judicial District, with authority to preside over the Fifth Branch of the Court of First
Instance of Manila and the Court of First Instance of Palawan, and his appointment was approved by the Commission on
Appointments of the National Assembly. By virtue of said appointment, the respondent took the necessary oath and
assumed office. On the same date, August 1, 1938, the President of the Philippines, pursuant to said appointment of
judge of first instance of the Fourth Judicial District and after confirmation thereof, issued the corresponding final
appointment in favor of the respondent, Honorable Sixto de la Costa (Exhibit 11).
The respondent, in answer to the petition, admits some of the facts alleged therein and denies the rest, and alleges, as
one of his special defenses, that the petitioner is estopped from attacking the constitutionality of Commonwealth Act
No. 145, for having accepted his new appointment as judge of first instance of the Fourth Judicial District, issued by
virtue thereof, to preside over the Courts of First Instance of Manila and Palawan, and for having taken the necessary
oath, entering into the discharge of the functions of his office and performing judicial as well as administrative acts.
The defense of estoppel being procedural, we shall discuss it first to determine whether or not the petitioner may
proceed to question the constitutionality of the law by virtue of which the new ad interim appointment of judge of first
instance of the Fourth Judicial District, to preside over the Courts of First Instance of Manila and Palawan, was issued in
his favor.
356
As stated beforehand, while the petitioner Honorable Francisco Zandueta was presiding over the Fifth Branch of the
Court of First Instance of Manila, Ninth Judicial District, by virtue of an appointment issued to him on June 2, 1936, and
confirmed by the National Assembly on September 8th of the same year, he received, on November 7, 1936, a
new ad interim appointment, issued in accordance with the provisions of Commonwealth Act No. 145, which took effect
on the same date, to discharge the office of judge of first instance, Fourth Judicial District, with authority to preside over
the Fifth Branch of the Court of First Instance of Manila and the Court of First Instance of Palawan, upon which he
immediately took the corresponding oath and entered into the discharge of his office. Under his former appointment of
June 2, 1936, the petitioner had authority preside solely over the Fifth Branch of the Court of First Instance of Manila but
not over the Court of First Instance of Palawan, while, according to his new appointment of November 7, 1936, he
had authority to preside not only over said Fifth Branch of said Court of First Instance of Manila but also over the Court
of First Instance of Palawan. It should be noted that the territory over which the petitioner could exercise and did
exercise jurisdiction by virtue of his last appointment is wider than that over which he could exercise and did exercise
jurisdiction by virtue of the former. Hence, there is incompatibility between the two appointments and, consequently, in
the discharge of the office conferred by each of them, resulting in the absorption of the former by the latter. In
accepting this appointment and qualifying for the exercise of the functions of the office conferred by it, by taking the
necessary oath, and in discharging the same, disposing of both judicial and administrative cases corresponding to the
courts of First Instance of Manila and of Palawan, the petitioner abandoned his appointment of June 2, 1936, and ceased
in the exercise of the functions of the office occupied by him by virtue thereof.
The rule of equity, sanctioned by jurisprudence, is that when a public official voluntarily accepts an appointment to an
office newly created or reorganized by law, which new office is incompatible with the one formerly occupied by him
, qualifies for the discharge of the functions thereof by taking the necessary oath, and enters into the performance of
his duties by executing acts inherent in said newly created or reorganized office and receiving the corresponding salary,
he will be considered to have abandoned the office he was occupying by virtue of his former appointment (46 Corpus
Juris, 947, sec. 55), and he can not question the constitutionality of the law by virtue of which he was last appointed (11
American Jurisprudence, 166, par. 121; id., 767, par. 123). He is excepted from said rule only when his non-acceptance
of the new appointment may affect public interest or when he is compelled to accept it by reason of legal exigencies (11
American Jurisprudence, 770, par. 124). lawphi1.net
In the case under consideration, the petitioner was free to accept or not the ad interim appointment issued by the
President of the Commonwealth in his favor, in accordance with said Commonwealth Act No. 145. Nothing or nobody
compelled him to do so. While the office of judge of first instance of public interest, being one of the means employed
by the Government to carry out one of its purposes, which is the administration of justice, considering the organization
of the courts of justice in the Philippines and the creation of the positions of judges-at-large or substitutes, the
temporary disability of a judge may be immediately remedied without detriment to the smooth running of the judicial
machinery. If the petitioner believed, as he now seems to believe, that Commonwealth Act No. 145 is unconstitutional,
he should have refused to accept the appointment offered him or, at least, he should have accepted it with reservation,
had he believed that his duty of obedience to the laws compelled him to do so, and afterwards resort to the power
entrusted with the final determination of the question whether a law is unconstitutional or not. The petitioner, being
aware of his constitutional and legal rights and obligations, by implied order of the law (art. 2, Civil Code), accepted the
office of judge of first instance of the Fourth Judicial District, with authority to preside over the Fifth Branch of the Court
of First Instance of Manila and the Court of First Instance of Palawan and entered into the performance of the duties
inherent therein, after taking the necessary oath, thereby acting with full knowledge that if he voluntarily accepted the
office to which he was appointed, he would later be estopped from questioning the validity of said appointment by
alleging that the law, by virtue of which his appointment was issued, is unconstitutional. He likewise knew, or at least he
should know, that his ad interim appointment was subject to the approval of the Commission on Appointments of the
National Assembly and that if said commission were to disapprove the same, it would become ineffective and he would
cease discharging the office.
It appears from all the foregoing that the petitioner having voluntarily abandoned his appointment of June 2, 1936, and,
consequently, the office of judge of first instance of Manila, Ninth Judicial District, whose Fifth Branch was being
presided over by him by virtue thereof, upon accepting the ad interim appointment of November 7, 1936, to the
office of judge of first instance of the Fourth Judicial District, with authority to preside over said Fifth Branch of the Court
of First Instance of Manila together with the Court of First Instance of Palawan, and entering into the discharge of the
functions of said office, he can not now claim to be entitled to repossess the office occupied by him under his said
appointment of June 2, 1936 (22 R. C. L., 560, par. 264), or question the constitutionality of Commonwealth Act No. 145,
357
by virtue of which he has been appointed judge of first instance of the Fourth Judicial District, with authority to preside
over the Fifth Branch of the Court of First Instance of Manila and the Court of First Instance of Palawan, which
appointment was disapproved by the Commission on Appointments of the National Assembly.
Having arrived at the conclusion that the petitioner is estopped by his own act from proceeding to question the
constitutionality of Commonwealth Act No. 145, by virtue of which he was appointed, by accepting said appointment
and entering into the performance of the duties appertaining to the office conferred therein, and pursuant to the well
settled doctrine established by both American and Philippine jurisprudence relative to the consideration of
constitutional questions, this court deems it unnecessary to decide the questions constitutional law raised in the petition
(Cruz vs. Youngberg, 56 Phil., 234; Walter E. Olsen and Co. vs. Aldanese and Trinidad, 43 Phil., 259; Yangco vs. Board of
Public Utility Commissioner, 36 Phil., 116; Government of the Philippine Islands vs. Municipality of Binagonan, 34 Phil.,
518; McGirr vs. Hamilton and Abreu, 30 Phil., 563; 12 Corpus Juris, 699, section 40; id., 780, section 212).
For the foregoing considerations, we are of the opinion and so hold when a judge of first instance, presiding over a
branch of a Court of First Instance of a judicial district by virtue of a legal and valid appointment, accepts another
appointment to preside over the same branch of the same Court of First Instance, in addition to another court of the
same category, both of which belong to a new judicial district formed by the addition of another Court of First Instance
to the old one, enters into the discharge of the functions of his new office and receives the corresponding salary, he
abandons his old office and cannot claim to be to repossess it or question the constitutionality of the law by virtue of
which his new appointment has been issued; and, said new appointment having been disapproved by the Commission
on Appointments of the National Assembly, neither can he claim to continue occupying the office conferred upon him by
said new appointment, having ipso jure ceased in the discharge of the functions thereof.
Wherefore, the petition for quo warranto instituted is denied and the same is dismissed with costs to the petitioner. So
ordered.
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA
REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and
CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to
privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right most
valued by civilized men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is a
usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against
further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
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WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact
business with basic service and social security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on
social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies
and other government intrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me
by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized Identification

Reference System among the key basic services and social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such
shall provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with
the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in
computer application designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the
National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-
media information dissemination campaign to educate and raise public awareness on the importance and use of the
PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective
budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President
through the IACC, on the status of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect immediately.
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DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On
January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and
the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with
the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A

LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC
OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT
WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE
SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3
We now resolve.
As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the
petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a
Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308
is a usurpation of legislative power. 4 As taxpayer and member of the Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement
A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing rules of A.O. No.
308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His
action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused the publication of a notice to bid for the manufacture of the National
Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly announced that representatives from the
360
GSIS and the SSS have completed the guidelines for the national identification system. 7 All signals from the respondents
show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass
judgment on its constitutionality. In this light, the dissenters insistence that we tighten the rule on standing is not a
commendable stance as its result would be to throttle an important constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and
hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of identification
that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable.
The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive
to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the
Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the people in their original,
sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. 9 The grant of legislative
power to Congress is broad, general and comprehensive. 10 The legislative body possesses plenary power for all
purposes of civil government. 11 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by the Constitution, either
expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common
interest. 13
While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive power is
vested in the Presidents. 15 It is generally defined as the power to enforce and administer the laws. 16 It is the power of
carrying the laws into practical operation and enforcing their due observance. 17
As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole
and sees to it that all laws are enforced by the officials and employees of his department. 18 He has control over the
executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the
executive department, bureau and office or interfere with the discretion of its officials. 19 Corollary to the power of
control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace
and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by
an administrative order. An administrative order is:
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative
operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the
law and carrying out the legislative policy. 24 We reject the argument that A.O. No. 308 implements the legislative policy
of the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance." 25 and "embodies changes in administrative structure
and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II
with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on
361
the Executive Branch, Book V on Constitutional Commissions, Book VI on National Government Budgeting, and Book VII
on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of
the executive, legislative and judicial branches of government, the organization and administration of departments,
bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government budget, as well as guideline for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration
of government, i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects of the
functions performed by administrative officials on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes
for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment
of various contending state policies the primacy of national security, the extent of privacy interest against dossier-
gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No.
308 involves the all-important freedom of thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to
make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right, imposes no duty,
affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with government
agencies delivering basic services to the people without the contemplated identification card. No citizen will refuse to
get this identification card for no one can avoid dealing with government. It is thus clear as daylight that without the ID,
a citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the contention that A.O.
No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently
erodes the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional
limits of administrative legislation. As well stated by Fisher: ". . . Many regulations however, bear directly on the public.
It is here that administrative legislation must he restricted in its scope and application. Regulations are not supposed to
be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of
power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an
administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be let
alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court gave more substance to the
right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give
them life and substance . . . various guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the
quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the ''right of the people to be secure in their persons, houses and effects,
against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment
provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to privacy.
Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
362
The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offence on the
ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed
"a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in
other words, of the dignity and integrity of the individual has become increasingly important as modern society has
developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several
provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court,
or when public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person shall
respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a public
officer or employee or any private individual liable for damages for any violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and other private communications. 37 The Revised Penal Code makes a
crime the violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and trespass to dwelling.
40 Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42
and the Intellectual Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of
certain information. 44
363
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provides our
citizens and foreigners with the facility to conveniently transact business with basic service and social security providers
and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to
warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O.
No. 308 which if implemented will put our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common
reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and
"computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a mathematical analysis
of biological data." 45 The term "biometrics" has evolved into a broad category of technologies which provide precise
confirmation of an individual's identity through the use of the individual's own physiological and behavioral
characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's personality and
includes voice print, signature and keystroke. 47 Most biometric idenfication systems use a card or personal identificatin
number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card
or entering the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the unique
pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data banks 49
and becomes a means of identifying an individual using a service. This technology requires one's fingertip to be scanned
every time service or access is provided. 50 Another method is the retinal scan. Retinal scan technology employs optical
technology to map the capillary pattern of the retina of the eye. This technology produces a unique print similar to a
finger print. 51 Another biometric method is known as the "artificial nose." This device chemically analyzes the unique
combination of substances excreted from the skin of people. 52 The latest on the list of biometric achievements is the
thermogram. Scientists have found that by taking pictures of a face using infra-red cameras, a unique heat distribution
pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individual's personal
"heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts.
Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy
that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall
be used to identify people who will seek its coverage. Considering the banquest of options available to the implementors
of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data
is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the "generation of population data for development
planning." 54 This is an admission that the PRN will not be used solely for identification but the generation of other data
with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve information for a purpose other than the identification of the
individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the dissenters do.
Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency
to avail of basic services and security. His transactions with the government agency will necessarily be recorded
whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions
for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge formidable
informatin base through the electronic linkage of the files. 55 The data may be gathered for gainful and useful
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government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to
misuse, a temptation that may be too great for some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal
infomation about the individual. 57 Even that hospitable assumption will not save A.O. No. 308 from constitutional
infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall he
handled. It does not provide who shall control and access the data, under what circumstances and for what purpose.
These factors are essential to safeguard the privacy and guaranty the integrity of the information. 58 Well to note, the
computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against
leakage of information. When the access code of the control programs of the particular computer system is broken, an
intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the
data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about
our people will only be processed for unequivocally specified purposes. 60 The lack of proper safeguards in this regard of
A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against
self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer
technology are accentuated when we consider that the individual lacks control over what can be read or placed on his
ID, much less verify the correctness of the data encoded. 62 They threaten the very abuses that the Bill of Rights seeks
to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and
transmit it over a national network is one of the most graphic threats of the computer revolution. 64 The computer is
capable of producing a comprehensive dossier on individuals out of information given at different times and for varied
purposes. 65 It can continue adding to the stored data and keeping the information up to date. Retrieval of stored date
is simple. When information of a privileged character finds its way into the computer, it can be extracted together with
other data on the subject. 66 Once extracted, the information is putty in the hands of any person. The end of privacy
begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to
privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be
true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the sparks that
endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to
the Natioal ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a person's
expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. 67 The factual
circumstances of the case determines the reasonableness of the expectation. 68 However, other factors, such as
customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. 69
The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy. 70 As technology advances, the level of reasonably expected privacy decreases. 71 The measure
of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted.
72 The security of the computer data file depends not only on the physical inaccessibility of the file but also on the
advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for
a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the
policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered discretion to determine the metes and
bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act. No.
591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine.
73 Republic Act. No. 1161 prohibits public disclosure of SSS employment records and reports. 74 These laws, however,
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apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other
government agencies forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the rational
relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3) generate
population data for development planning. He cocludes that these purposes justify the incursions into the right to
privacy for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the Anti-
Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer
to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to promote morality in public administration by curtailing and
minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative order.
Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and penalized, and it
was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but,
it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hod that when the integrity of a
fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties.
Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not
defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling
state interests and that the law, rule or regulation is narrowly drawn to preclude abuses. This approach is demanded by
the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case
of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the
Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States Supreme Court
was presented with the question of whether the State of New York could keep a centralized computer record of the
names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substance Act of 1972 required physicians to identify parties obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the
patients can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might decline necessary medication because of their fear that the
computerized data may be readily available and open to public disclosure; and that once disclosed, it may stigmatize
them as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e.,
the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain
kinds of important decisions. The U.S. Supreme Court held that while an individual's interest in avoiding disclosuer of
personal matter is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a
constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to
minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an orderly and
rational legislative decision made upon recommmendation by a specially appointed commission which held extensive
hearings on the matter. Moreover, the statute was narrowly drawn and contained numerous safeguards against
indiscriminate disclosure. The statute laid down the procedure and requirements for the gathering, storage and retrieval
of the informatin. It ebumerated who were authorized to access the data. It also prohibited public disclosure of the data
by imposing penalties for its violation. In view of these safeguards, the infringement of the patients' right to privacy was
justified by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use of computers to
accumulate, store, process, retvieve and transmit data to improve our bureaucracy. Computers work wonders to
achieve the efficiency which both government and private industry seek. Many information system in different countries
make use of the computer to facilitate important social objective, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance programs, improvement of telecommunications and
streamlining of financial activities. 81 Used wisely, data stored in the computer could help good administration by
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making accurate and comprehensive information for those who have to frame policy and make key decisions. 82 The
benefits of the computer has revolutionized information technology. It developed the internet, 83 introduced the
concept of cyberspace 84 and the information superhighway where the individual, armed only with his personal
computer, may surf and search all kinds and classes of information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The
right is not intended to stifle scientific and technological advancements that enhance public service and the common
good. It merely requires that the law be narrowly focused 85 and a compelling interest justify such intrusions. 86
Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this
Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:
The concept of limited government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic disctinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in
other words, of the dignity and integrity of the individual has become increasingly important as modern society has
developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from
various sources governments, journalists, employers, social scientists, etc. 88 In th case at bar, the threat comes from
the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by
giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-
keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government
the power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded
warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past
and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity
to forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as
a fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for
flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null and void for being unconstitutional.
SO ORDERED.
G.R. No. L-23825 December 24, 1965
EMMANUEL PELAEZ, petitioner,

vs.
THE AUDITOR GENERAL, respondent.
Zulueta, Gonzales, Paculdo and Associates for petitioner.

Office of the Solicitor General for respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to
Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating
thirty-three (33) municipalities enumerated in the margin.1 Soon after the date last mentioned, or on November 10,
1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, instituted the present special
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civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as
his representatives and agents, from passing in audit any expenditure of public funds in implementation of said
executive orders and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has been impliedly
repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power. Respondent maintains the
contrary view and avers that the present action is premature and that not all proper parties referring to the officials
of the new political subdivisions in question have been impleaded. Subsequently, the mayors of several municipalities
adversely affected by the aforementioned executive orders because the latter have taken away from the former the
barrios composing the new political subdivisions intervened in the case. Moreover, Attorneys Enrique M. Fernando
and Emma Quisumbing-Fernando were allowed to and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370, reads:
Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act
or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:
All barrios existing at the time of the passage of this Act shall come under the provisions hereof.
Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an existing
one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or
municipalities in which the proposed barrio is stipulated. The recommendation of the municipal council shall be
embodied in a resolution approved by at least two-thirds of the entire membership of the said council: Provided,
however, That no new barrio may be created if its population is less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their
boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon
petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new
law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are
units of municipalities?"
Respondent answers in the affirmative, upon the theory that a new municipality can be created without creating new
barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This theory overlooks, however,
the main import of the petitioner's argument, which is that the statutory denial of the presidential authority to create a
new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. The
cogency and force of this argument is too obvious to be denied or even questioned. Founded upon logic and experience,
it cannot be offset except by a clear manifestation of the intent of Congress to the contrary, and no such manifestation,
subsequent to the passage of Republic Act No. 2379, has been brought to our attention.
Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based,
provides:
The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any
province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish
the territory comprised therein, may divide any province into one or more subprovinces, separate any political division
other than a province, into such portions as may be required, merge any of such subdivisions or portions with another,
name any new subdivision so created, and may change the seat of government within any subdivision to such place
therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of
the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any
province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the
Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any
administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the
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recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the
territory of the several officers affected and assign such officers to the new districts so formed.
Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of
the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by
the (Insular Auditor) Auditor General and approved by the (Governor-General) President of the Philippines.
Respondent alleges that the power of the President to create municipalities under this section does not amount to an
undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binagonan (36 Phil.
547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new
municipality, but a mere transfer of territory from an already existing municipality (Cardona) to another municipality
(Binagonan), likewise, existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of
Cardona vs. Municipality, of Binagonan [34 Phil. 518, 519-5201) in consequence of the fixing and definition, pursuant
to Act No. 1748, of the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of an administrative nature involving, as it does, the
adoption of means and ways to carry into effect the law creating said municipalities the authority to create municipal
corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" (State
ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the exercise of legislative power" (Udall
vs. Severn, May 29, 1938, 79 P. 2d 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs.
Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of statutes."
Although1a Congress may delegate to another branch of the Government the power to fill in the details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of
powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or
implemented by the delegate2 and (b) fix a standard the limits of which are sufficiently determinate or
determinable to which the delegate must conform in the performance of his functions.2a Indeed, without a statutory
declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law;
and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether
the delegate has acted within or beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself
the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently, undermining the very foundation of our Republican system.
Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of
the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above
referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68,
the President:
... may change the seat of the government within any subdivision to such place therein as the public welfare may
require.
It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require" qualified,
not the clauses preceding the one just quoted, but only the place to which the seat of the government may be
transferred. This fact becomes more apparent when we consider that said Section 68 was originally Section 1 of Act No.
1748,3 which provided that, "whenever in the judgment of the Governor-General the public welfare requires, he may,
by executive order," effect the changes enumerated therein (as in said section 68), including the change of the seat of
the government "to such place ... as the public interest requires." The opening statement of said Section 1 of Act No.
1748 which was not included in Section 68 of the Revised Administrative Code governed the time at which, or the
conditions under which, the powers therein conferred could be exercised; whereas the last part of the first sentence of
said section referred exclusively to the place to which the seat of the government was to be transferred.
At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the
phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that in
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Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and
"public interest," respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the
doctrine laid down in these cases as all judicial pronouncements must be construed in relation to the specific facts
and issues involved therein, outside of which they do not constitute precedents and have no binding effect.4 The law
construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public
Works and Communications, the power to issue rules and regulations to promote safe transit upon national roads and
streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581,
to issue and cancel certificates or permits for the sale of speculative securities. Both cases involved grants to
administrative officers of powers related to the exercise of their administrative functions, calling for the determination
of questions of fact.
Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not an
administrative function, but one which is essentially and eminently legislative in character. The question of whether or
not "public interest" demands the exercise of such power is not one of fact. it is "purely a legislative question "(Carolina-
Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or a political question (Udall vs.
Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly characterized it, "the question as to whether
incorporation is for the best interest of the community in any case is emphatically a question of public policy and
statecraft" (In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state laws
granting the judicial department, the power to determine whether certain territories should be annexed to a particular
municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the right to determine the plan and frame of
government of proposed villages and what functions shall be exercised by the same, although the powers and functions
of the village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or conferring upon courts the
authority to declare a given town or village incorporated, and designate its metes and bounds, upon petition of a
majority of the taxable inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel
Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a given area and population, to be
incorporated as a town, on certain steps being taken by the inhabitants thereof and on certain determination by a court
and subsequent vote of the inhabitants in favor thereof, insofar as the court is allowed to determine whether the lands
embraced in the petition "ought justly" to be included in the village, and whether the interest of the inhabitants will be
promoted by such incorporation, and to enlarge and diminish the boundaries of the proposed village "as justice may
require" (In re Villages of North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal Board of Control which shall
determine whether or not the laying out, construction or operation of a toll road is in the "public interest" and whether
the requirements of the law had been complied with, in which case the board shall enter an order creating a municipal
corporation and fixing the name of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E.
2d. 310).
Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of Schechter Poultry
Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter case involved the constitutionality
of Section 3 of the National Industrial Recovery Act authorizing the President of the United States to approve "codes of
fair competition" submitted to him by one or more trade or industrial associations or corporations which "impose no
inequitable restrictions on admission to membership therein and are truly representative," provided that such codes are
not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate
against them, and will tend to effectuate the policy" of said Act. The Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no standards for
any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of
fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the
making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside from the
statement of the general aims of rehabilitation, correction and expansion described in Sec. 1. In view of the scope of
that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in
approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the
country, is virtually unfettered. We think that the code making authority thus conferred is an unconstitutional
delegation of legislative power.
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If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a
broader connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68
were upheld, there would no longer be any legal impediment to a statutory grant of authority to the President to do
anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be a
virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the
democratic system established by our Constitution, which it is the special duty and privilege of this Court to uphold.
It may not be amiss to note that the executive orders in question were issued after the legislative bills for the creation of
the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said
executive orders entails the exercise of purely legislative functions can hardly be given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over
all local governments as may be provided by law, and take care that the laws be faithfully executed.
The power of control under this provision implies the right of the President to interfere in the exercise of such discretion
as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as
well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local
governments are concerned. With respect to the latter, the fundamental law permits him to wield no more authority
than that of checking whether said local governments or the officers thereof perform their duties as provided by
statutory enactments. Hence, the President cannot interfere with local governments, so long as the same or its officers
act Within the scope of their authority. He may not enact an ordinance which the municipal council has failed or refused
to pass, even if it had thereby violated a duty imposed thereto by law, although he may see to it that the corresponding
provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an ordinance
passed by said council within the scope of its jurisdiction, no matter how patently unwise it may be. He may not even
suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a
decision of the corresponding provincial board.5
Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by
creating a new municipality and including therein the barrio in which the official concerned resides, for his office would
thereby become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had it), without
actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the
power of control denied to him by the Constitution.
Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than
the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials.
Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to
create a new one. As a consequence, the alleged power of the President to create municipal corporations would
necessarily connote the exercise by him of an authority even greater than that of control which he has over the
executive departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code does not
merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over
local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process
and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has
over said executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the
Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of
the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment.7
There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the proper parties"
referring to the officers of the newly created municipalities "have been impleaded in this case," and (b) that "the
present petition is premature."
371
As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers of
any of said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor General, who
has appeared on behalf of respondent Auditor General, is the officer authorized by law "to act and represent the
Government of the Philippines, its offices and agents, in any official investigation, proceeding or matter requiring the
services of a lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of the
aforementioned municipalities, which involves a political, not proprietary, function, said local officials, if any, are mere
agents or representatives of the national government. Their interest in the case at bar has, accordingly, been, in effect,
duly represented.8
With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order & in
question and has not intimated how he would act in connection therewith. It is, however, a matter of common, public
knowledge, subject to judicial cognizance, that the President has, for many years, issued executive orders creating
municipal corporations and that the same have been organized and in actual operation, thus indicating, without
peradventure of doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit by
the General Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt a
different policy as regards the new municipalities involved in this case, in the absence of an allegation to such effect, and
none has been made by him.
WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent
permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive
Orders or any disbursement by the municipalities above referred to. It is so ordered.
PLANTERS PRODUCTS, INC., G.R. No. 166006

- versus - FERTIPHIL CORPORATION,
THE Regional Trial Courts (RTC) have the authority and jurisdiction to consider the constitutionality of statutes, executive
orders, presidential decrees and other issuances. The Constitution vests that power not only in the Supreme Court but in
all Regional Trial Courts.
The principle is relevant in this petition for review on certiorari of the Decision [1] of the Court of Appeals (CA) affirming
with modification that of
the RTC in Makati City,[2] finding petitioner Planters Products, Inc. (PPI) liable to private respondent Fertiphil
Corporation (Fertiphil) for the levies it paid under Letter of Instruction (LOI) No. 1465.
The Facts
Petitioner PPI and private respondent Fertiphil are private corporations incorporated under Philippine laws.[3] They are
both engaged in the importation and distribution of fertilizers, pesticides and agricultural chemicals.
On June 3, 1985, then President Ferdinand Marcos, exercising his legislative powers, issued LOI No. 1465 which
provided, among others, for the imposition of a capital recovery component (CRC) on the domestic sale of all grades of
fertilizers in the Philippines.[4] The LOI provides:
3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution
component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to
make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines.[5]
(Underscoring supplied)
Pursuant to the LOI, Fertiphil paid P10 for every bag of fertilizer it sold in the domestic market to the Fertilizer and
Pesticide Authority (FPA). FPA then remitted the amount collected to the Far East Bank and Trust Company, the
depositary bank of PPI. Fertiphil paid P6,689,144 to FPA from July 8, 1985 to January 24, 1986.[6]
After the 1986 Edsa Revolution, FPA voluntarily stopped the imposition of the P10 levy. With the return of democracy,
Fertiphil demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede to the
demand.[7]
372
Fertiphil filed a complaint for collection and damages[8] against FPA and PPI with the RTC in Makati. It questioned the
constitutionality of LOI No. 1465 for being unjust, unreasonable, oppressive, invalid and an unlawful imposition that
amounted to a denial of due process of law.[9] Fertiphil alleged that the LOI solely favored PPI, a privately owned
corporation, which used the proceeds to maintain its monopoly of the fertilizer industry.
In its Answer,[10] FPA, through the Solicitor General, countered that the issuance of LOI No. 1465 was a valid exercise of
the police power of the State in ensuring the stability of the fertilizer industry in the country. It also averred that
Fertiphil did not sustain any damage from the LOI because the burden imposed by the levy fell on the ultimate
consumer, not the seller.
RTC Disposition
On November 20, 1991, the RTC rendered judgment in favor of Fertiphil, disposing as follows:
WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of the plaintiff and against the
defendant Planters Product, Inc., ordering the latter to pay the former:
1) the sum of P6,698,144.00 with interest at 12% from the time of judicial demand;
2) the sum of P100,000 as attorneys fees;
3) the cost of suit.
Ruling that the imposition of the P10 CRC was an exercise of the States inherent power of taxation, the RTC invalidated
the levy for violating the basic principle that taxes can only be levied for public purpose, viz.:
It is apparent that the imposition of P10 per fertilizer bag sold in the country by LOI 1465 is purportedly in the exercise of
the power of taxation. It is a settled principle that the power of taxation by the state is plenary. Comprehensive and
supreme, the principal check upon its abuse resting in the responsibility of the members of the legislature to their
constituents. However, there are two kinds of limitations on the power of taxation: the inherent limitations and the
constitutional limitations.
One of the inherent limitations is that a tax may be levied only for public purposes:
The power to tax can be resorted to only for a constitutionally valid public purpose. By the same token, taxes may not be
levied for purely private purposes, for building up of private fortunes, or for the redress of private wrongs. They cannot
be levied for the improvement of private property, or for the benefit, and promotion of private enterprises, except
where the aid is incident to the public benefit. It is well-settled principle of constitutional law that no general tax can be
levied except for the purpose of raising money which is to be expended for public use. Funds cannot be exacted under
the guise of taxation to promote a purpose that is not of public interest. Without such limitation, the power to tax could
be exercised or employed as an authority to destroy the economy of the people. A tax, however, is not held void on the
ground of want of public interest unless the want of such interest is clear. (71 Am. Jur. pp. 371-372)
In the case at bar, the plaintiff paid the amount of P6,698,144.00 to the Fertilizer and Pesticide Authority pursuant to the
P10 per bag of fertilizer sold imposition under LOI 1465 which, in turn, remitted the amount to the defendant Planters
Products, Inc. thru the latters depository bank, Far East Bank and Trust Co. Thus, by virtue of LOI 1465 the plaintiff,
Fertiphil Corporation, which is a private domestic corporation, became poorer by the amount of P6,698,144.00 and the
defendant, Planters Product, Inc., another private domestic corporation, became richer by the amount of P6,698,144.00.
Tested by the standards of constitutionality as set forth in the afore-quoted jurisprudence, it is quite evident that LOI
1465 insofar as it imposes the amount of P10 per fertilizer bag sold in the country and orders that the said amount
should go to the defendant Planters Product, Inc. is unlawful because it violates the mandate that a tax can be levied
only for a public purpose and not to benefit, aid and promote a private enterprise such as Planters Product, Inc.[12]
PPI moved for reconsideration but its motion was denied.[13] PPI then filed a notice of appeal with the RTC but it failed
to pay the requisite appeal docket fee. In a separate but related proceeding, this Court[14] allowed the appeal of PPI and
remanded the case to the CA for proper disposition.
CA Decision
On November 28, 2003, the CA handed down its decision affirming with modification that of the RTC, with the following
fallo:
373
IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby AFFIRMED, subject to the MODIFICATION that
the award of attorneys fees is hereby DELETED.[15]
In affirming the RTC decision, the CA ruled that the lis mota of the complaint for collection was the constitutionality of
LOI No. 1465, thus:
The question then is whether it was proper for the trial court to exercise its power to judicially determine the
constitutionality of the subject statute in the instant case.
As a rule, where the controversy can be settled on other grounds, the courts will not resolve the constitutionality of a
law (Lim v. Pacquing, 240 SCRA 649 [1995]). The policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of political departments are valid, absent a clear and unmistakable showing to the contrary.
However, the courts are not precluded from exercising such power when the following requisites are obtaining in a
controversy before it: First, there must be before the court an actual case calling for the exercise of judicial review.
Second, the question must be ripe for adjudication. Third, the person challenging the validity of the act must have
standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity; and
lastly, the issue of constitutionality must be the very lis mota of the case (Integrated Bar of the Philippines v. Zamora,
338 SCRA 81 [2000]).
Indisputably, the present case was primarily instituted for collection and damages. However, a perusal of the complaint
also reveals
that the instant action is founded on the claim that the levy imposed was an unlawful and unconstitutional special
assessment. Consequently, the requisite that the constitutionality of the law in question be the very lis mota of the case
is present, making it proper for the trial court to rule on the constitutionality of LOI 1465.[16]
The CA held that even on the assumption that LOI No. 1465 was issued under the police power of the state, it is still
unconstitutional because it did not promote public welfare. The CA explained:
In declaring LOI 1465 unconstitutional, the trial court held that the levy imposed under the said law was an invalid
exercise of the States power of taxation inasmuch as it violated the inherent and constitutional prescription that taxes
be levied only for public purposes. It reasoned out that the amount collected under the levy was remitted to the
depository bank of PPI, which the latter used to advance its private interest.
On the other hand, appellant submits that the subject statutes passage was a valid exercise of police power. In addition,
it disputes the court a quos findings arguing that the collections under LOI 1465 was for the benefit of Planters
Foundation, Incorporated (PFI), a foundation created by law to hold in trust for millions of farmers, the stock ownership
of PPI.
Of the three fundamental powers of the State, the exercise of police power has been characterized as the most
essential, insistent and the least limitable of powers, extending as it does to all the great public needs. It may be
exercised as long as the activity or the property sought to be regulated has some relevance to public welfare
(Constitutional Law, by Isagani A. Cruz, p. 38, 1995 Edition).
Vast as the power is, however, it must be exercised within the limits set by the Constitution, which requires the
concurrence of a lawful subject and a lawful method. Thus, our courts have laid down the test to determine the validity
of a police measure as follows: (1) the interests of the public generally, as distinguished from those of a particular class,
requires its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals (National Development Company v. Philippine Veterans Bank, 192 SCRA 257
[1990]).
It is upon applying this established tests that We sustain the trial courts holding LOI 1465 unconstitutional. To be sure,
ensuring the continued supply and distribution of fertilizer in the country is an undertaking imbued with public interest.
However, the method by which LOI 1465 sought to achieve this is by no means a measure that will promote the public
welfare. The governments commitment to support the successful rehabilitation and continued viability of PPI, a private
374
corporation, is an unmistakable attempt to mask the subject statutes impartiality. There is no way to treat the self-
interest of a favored entity,
like PPI, as identical with the general interest of the countrys farmers or even the Filipino people in general. Well to
stress, substantive due process exacts fairness and equal protection disallows distinction where none is needed. When a
statutes public purpose is spoiled by private interest, the use of police power becomes a travesty which must be struck
down for being an arbitrary exercise of government power. To rule in favor of appellant would contravene the general
principle that revenues derived from taxes cannot be used for purely private purposes or for the exclusive benefit of
private individuals.[17]
The CA did not accept PPIs claim that the levy imposed under LOI No. 1465 was for the benefit of Planters Foundation,
Inc., a foundation created to hold in trust the stock ownership of PPI. The CA stated:
Appellant next claims that the collections under LOI 1465 was for the benefit of Planters Foundation, Incorporated (PFI),
a foundation created by law to hold in trust for millions of farmers, the stock ownership of PFI on the strength of Letter
of Undertaking (LOU) issued by then Prime Minister Cesar Virata on April 18, 1985 and affirmed by the Secretary of
Justice in an Opinion dated October 12, 1987, to wit:
2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to include in its fertilizer pricing
formula a capital recovery component, the proceeds of which will be used initially for the purpose of funding the unpaid
portion of the outstanding capital stock of Planters presently held in trust by Planters Foundation, Inc. (Planters
Foundation), which unpaid capital is estimated at approximately P206 million (subject to validation by Planters and
Planters Foundation) (such unpaid portion of the outstanding capital stock of Planters being hereafter referred to as the
Unpaid Capital), and subsequently for such capital increases as may be required for the continuing viability of Planters.
The capital recovery component shall be in the minimum amount of P10 per bag, which will be added to the price of all
domestic sales of fertilizer in the Philippines by any importer and/or fertilizer mother company. In this connection, the
Republic hereby acknowledges that the advances by Planters to Planters Foundation which were applied to the payment
of the Planters shares now held in trust by Planters Foundation, have been assigned to, among others, the Creditors.
Accordingly, the Republic, through FPA, hereby agrees to deposit the proceeds of the capital recovery component in the
special trust account designated in the notice dated April 2, 1985, addressed by counsel for the Creditors to Planters
Foundation. Such proceeds shall be deposited by FPA on or before the 15th day of each month.
The capital recovery component shall continue to be charged and collected until payment in full of (a) the Unpaid Capital
and/or (b) any shortfall in the payment of the Subsidy Receivables, (c) any carrying cost accruing from the date hereof
on the amounts which may be outstanding from time to time of the Unpaid Capital and/or the Subsidy Receivables and
(d) the capital increases contemplated in paragraph 2 hereof. For the purpose of the foregoing clause (c), the carrying
cost shall be at such rate as will represent the full and reasonable cost to Planters of servicing its debts, taking into
account both its peso and foreign currency-denominated obligations. (Records, pp. 42-43)
Appellants proposition is open to question, to say the least. The LOU issued by then Prime Minister Virata taken
together with the Justice Secretarys Opinion does not preponderantly demonstrate that the collections made were held
in trust in favor of millions of farmers. Unfortunately for appellant, in the absence of sufficient evidence to establish its
claims, this Court is constrained to rely on what is explicitly provided in LOI 1465 that one of the primary aims in
imposing the levy is to support the successful rehabilitation and continued viability of PPI.[18]
PPI moved for reconsideration but its motion was denied.[19] It then filed the present petition with this Court.
Issues
Petitioner PPI raises four issues for Our consideration, viz.:
I
THE CONSTITUTIONALITY OF LOI 1465 CANNOT BE COLLATERALLY ATTACKED AND BE DECREED VIA A DEFAULT
JUDGMENT IN A CASE FILED FOR COLLECTION AND DAMAGES WHERE THE ISSUE OF CONSTITUTIONALITY IS NOT THE
375
VERY LIS MOTA OF THE CASE. NEITHER CAN LOI 1465 BE CHALLENGED BY ANY PERSON OR ENTITY WHICH HAS NO
STANDING TO DO SO.
II
LOI 1465, BEING A LAW IMPLEMENTED FOR THE PURPOSE OF ASSURING THE FERTILIZER SUPPLY AND DISTRIBUTION IN
THE COUNTRY, AND FOR BENEFITING A FOUNDATION CREATED BY LAW TO HOLD IN TRUST FOR MILLIONS OF FARMERS
THEIR STOCK OWNERSHIP IN PPI CONSTITUTES A VALID LEGISLATION PURSUANT TO THE EXERCISE OF TAXATION AND
POLICE POWER FOR PUBLIC PURPOSES.
III
THE AMOUNT COLLECTED UNDER THE CAPITAL RECOVERY COMPONENT WAS REMITTED TO THE GOVERNMENT, AND
BECAME GOVERNMENT FUNDS PURSUANT TO AN EFFECTIVE AND VALIDLY ENACTED LAW WHICH IMPOSED DUTIES AND
CONFERRED RIGHTS BY VIRTUE OF THE PRINCIPLE OF OPERATIVE FACT PRIOR TO ANY DECLARATION OF
UNCONSTITUTIONALITY OF LOI 1465.
IV
THE PRINCIPLE OF UNJUST VEXATION (SHOULD BE ENRICHMENT) FINDS NO APPLICATION IN THE INSTANT CASE.[20]
(Underscoring supplied)
Our Ruling
We shall first tackle the procedural issues of locus standi and the jurisdiction of the RTC to resolve constitutional issues.
Fertiphil has locus standi because it suffered direct injury; doctrine of standing is a mere procedural technicality which
may be waived.
PPI argues that Fertiphil has no locus standi to question the constitutionality of LOI No. 1465 because it does not have a
personal and substantial interest in the case or will sustain direct injury as a result of its enforcement.[21] It asserts that
Fertiphil did not suffer any damage from the CRC imposition because incidence of the levy fell on the ultimate consumer
or the farmers themselves, not on the seller fertilizer company.[22]
We cannot agree. The doctrine of locus standi or the right of appearance in a court of justice has been adequately
discussed by this Court in a catena of cases. Succinctly put, the doctrine requires a litigant to have a material interest in
the outcome of a case. In private suits, locus standi requires a litigant to be a real party in interest, which is defined as
the
party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.[23]
In public suits, this Court recognizes the difficulty of applying the doctrine especially when plaintiff asserts a public right
on behalf of the general public because of conflicting public policy issues. [24] On one end, there is the right of the
ordinary citizen to petition the courts to be freed from unlawful government intrusion and illegal official action. At the
other end, there is the public policy precluding excessive judicial interference in official acts, which may unnecessarily
hinder the delivery of basic public services.
In this jurisdiction, We have adopted the direct injury test to determine locus standi in public suits. In People v. Vera,[25]
it was held that a person who impugns the validity of a statute must have a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result. The direct injury test in public suits is similar to the
real party in interest rule for private suits under Section 2, Rule 3 of the 1997 Rules of Civil Procedure.[26]
Recognizing that a strict application of the direct injury test may hamper public interest, this Court relaxed the
requirement in cases of transcendental importance or with far reaching implications. Being a mere procedural
technicality, it has also been held that locus standi may be waived in the public interest.[27]
Whether or not the complaint for collection is characterized as a private or public suit, Fertiphil has locus standi to file it.
Fertiphil suffered a direct injury from the enforcement of LOI No. 1465. It was required, and it did pay, the P10 levy
imposed for every bag of fertilizer sold on the domestic market. It may be true that Fertiphil has passed some or all of
the levy to the ultimate consumer, but that does not disqualify it from attacking the constitutionality of the LOI or from
376
seeking a refund. As seller, it bore the ultimate burden of paying the levy. It faced the possibility of severe sanctions for
failure to pay the levy. The fact of payment is sufficient injury to Fertiphil.
Moreover, Fertiphil suffered harm from the enforcement of the LOI because it was compelled to factor in its product the
levy. The levy certainly rendered the fertilizer products of Fertiphil and other domestic sellers much more expensive. The
harm to their business consists not only in fewer clients because of the increased price, but also in adopting alternative
corporate strategies to meet the demands of LOI No. 1465. Fertiphil and other fertilizer sellers may have shouldered all
or part of the levy just to be competitive in the market. The harm occasioned on the business of Fertiphil is sufficient
injury for purposes of locus standi.
Even assuming arguendo that there is no direct injury, We find that the liberal policy consistently adopted by this Court
on locus standi must apply. The issues raised by Fertiphil are of paramount public importance. It involves not only the
constitutionality of a tax law but, more importantly, the use of taxes for public purpose. Former President Marcos issued
LOI No. 1465 with the intention of rehabilitating an ailing private company. This is clear from the text of the LOI. PPI is
expressly named in the LOI as the direct beneficiary of the levy. Worse, the levy was made dependent and conditional
upon PPI becoming financially viable. The LOI provided that the capital contribution shall be collected until adequate
capital is raised to make PPI viable.
The constitutionality of the levy is already in doubt on a plain reading of the statute. It is Our constitutional duty to
squarely resolve the issue as the final arbiter of all justiciable controversies. The doctrine of standing, being a mere
procedural technicality, should be waived, if at all, to adequately thresh out an important constitutional issue.
RTC may resolve constitutional issues; the constitutional issue was adequately raised in the complaint; it is the lis mota
of the case.
PPI insists that the RTC and the CA erred in ruling on the constitutionality of the LOI. It asserts that the constitutionality
of the LOI cannot be collaterally attacked in a complaint for collection.[28] Alternatively, the resolution of the
constitutional issue is not necessary for a determination of the complaint for collection.[29]
Fertiphil counters that the constitutionality of the LOI was adequately pleaded in its complaint. It claims that the
constitutionality of LOI No. 1465 is the very lis mota of the case because the trial court cannot determine its claim
without resolving the issue.[30]
It is settled that the RTC has jurisdiction to resolve the constitutionality of a statute, presidential decree or an executive
order. This is clear from Section 5, Article VIII of the 1987 Constitution, which provides:
SECTION 5. The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Underscoring supplied)
In Mirasol v. Court of Appeals,[31] this Court recognized the power of the RTC to resolve constitutional issues, thus:
On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the
constitutionality of a statute, presidential decree, or executive order. The Constitution vests the power of judicial review
or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation not only in this Court, but in all Regional Trial Courts.[32]
In the recent case of Equi-Asia Placement, Inc. v. Department of Foreign Affairs,[33] this Court reiterated:
There is no denying that regular courts have jurisdiction over cases involving the validity or constitutionality of a rule or
regulation issued by administrative agencies. Such jurisdiction, however, is not limited to the Court of Appeals or to this
Court alone for even the regional trial courts can take cognizance of actions assailing a specific rule or set of rules
377
promulgated by administrative bodies. Indeed, the Constitution vests the power of judicial review or the power to
declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or
regulation in the courts, including the regional trial courts.[34]
Judicial review of official acts on the ground of unconstitutionality may be sought or availed of through any of the
actions cognizable by courts of justice, not necessarily in a suit for declaratory relief. Such review may be had in criminal
actions, as in People v. Ferrer[35] involving the constitutionality of the now defunct Anti-Subversion law, or in ordinary
actions, as in Krivenko v. Register of Deeds[36] involving the constitutionality of laws prohibiting aliens from acquiring
public lands. The constitutional issue, however, (a) must be properly raised and presented in the case, and (b) its
resolution is necessary to a determination of the case, i.e., the issue of constitutionality must be the very lis mota
presented.[37]
Contrary to PPIs claim, the constitutionality of LOI No. 1465 was properly and adequately raised in the complaint for
collection filed with the RTC. The pertinent portions of the complaint allege:
6. The CRC of P10 per bag levied under LOI 1465 on domestic sales of all grades of fertilizer in the Philippines, is
unlawful, unjust, uncalled for, unreasonable, inequitable and oppressive because:
xxxx
(c) It favors only one private domestic corporation, i.e., defendant PPPI, and imposed at the expense and disadvantage
of the other fertilizer importers/distributors who were themselves in tight business situation and were then exerting all
efforts and maximizing management and marketing skills to remain viable;
xxxx
(e) It was a glaring example of crony capitalism, a forced program through which the PPI, having been presumptuously
masqueraded as the fertilizer industry itself, was the sole and anointed beneficiary;
7. The CRC was an unlawful; and unconstitutional special assessment and its imposition is tantamount to illegal exaction
amounting to a denial of due process since the persons of entities which had to bear the burden of paying the CRC
derived no benefit therefrom; that on the contrary it was used by PPI in trying to regain its former despicable monopoly
of the fertilizer industry to the detriment of other distributors and importers.[38] (Underscoring supplied)
The constitutionality of LOI No. 1465 is also the very lis mota of the complaint for collection. Fertiphil filed the complaint
to compel PPI to refund the levies paid under the statute on the ground that the law imposing the levy is
unconstitutional. The thesis is that an unconstitutional law is void. It has no legal effect. Being void, Fertiphil had no legal
obligation to pay the levy. Necessarily, all levies duly paid pursuant to an unconstitutional law should be refunded under
the civil code principle against unjust enrichment. The refund is a mere consequence of the law being declared
unconstitutional. The RTC surely cannot order PPI to refund Fertiphil if it does not declare the LOI unconstitutional. It is
the unconstitutionality of the LOI which triggers the refund. The issue of constitutionality is the very lis mota of the
complaint with the RTC.
The P10 levy under LOI No. 1465 is an exercise of the power of taxation.
At any rate, the Court holds that the RTC and the CA did not err in ruling against the constitutionality of the LOI.
PPI insists that LOI No. 1465 is a valid exercise either of the police power or the power of taxation. It claims that the LOI
was implemented for the purpose of assuring the fertilizer supply and distribution in the country and for benefiting a
foundation created by law to hold in trust for millions of farmers their stock ownership in PPI.
Fertiphil counters that the LOI is unconstitutional because it was enacted to give benefit to a private company. The levy
was imposed to pay the corporate debt of PPI. Fertiphil also argues that, even if the LOI is enacted under the police
power, it is still unconstitutional because it did not promote the general welfare of the people or public interest.
Police power and the power of taxation are inherent powers of the State. These powers are distinct and have different
tests for validity. Police power is the power of the State to enact legislation that may interfere with personal liberty or
378
property in order to promote the general welfare,[39] while the power of taxation is the power to levy taxes to be used
for public purpose. The main purpose of police power is the regulation of a behavior or conduct, while taxation is
revenue generation. The lawful subjects and lawful means tests are used to determine the validity of a law enacted
under the police power.[40] The power of taxation, on the other hand, is circumscribed by inherent and constitutional
limitations.
We agree with the RTC that the imposition of the levy was an exercise by the State of its taxation power. While it is true
that the power of taxation can be used as an implement of police power,[41] the primary purpose of the levy is revenue
generation. If the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then
the exaction is properly called a tax.[42]
In Philippine Airlines, Inc. v. Edu,[43] it was held that the imposition of a vehicle registration fee is not an exercise by the
State of its police power, but of its taxation power, thus:
It is clear from the provisions of Section 73 of Commonwealth Act 123 and Section 61 of the Land Transportation and
Traffic Code that the legislative intent and purpose behind the law requiring owners of vehicles to pay for their
registration is mainly to raise funds for the construction and maintenance of highways and to a much lesser degree, pay
for the operating expenses of the administering agency. x x x Fees may be properly regarded as taxes even though they
also serve as an instrument of regulation.
Taxation may be made the implement of the state's police power (Lutz v. Araneta, 98 Phil. 148). If the purpose is
primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called
a tax. Such is the case of motor vehicle registration fees. The same provision appears as Section 59(b) in the Land
Transportation Code. It is patent therefrom that the legislators had in mind a regulatory tax as the law refers to the
imposition on the registration, operation or ownership of a motor vehicle as a tax or fee. x x x Simply put, if the exaction
under Rep. Act 4136 were merely a regulatory fee, the imposition in Rep. Act 5448 need not be an additional tax. Rep.
Act 4136 also speaks of other fees such as the special permit fees for certain types of motor vehicles (Sec. 10) and
additional fees for change of registration (Sec. 11). These are not to be understood as taxes because such fees are very
minimal to be revenue-raising. Thus, they are not mentioned by Sec. 59(b) of the Code as taxes like the motor vehicle
registration fee and chauffeurs license fee. Such fees are to go into the expenditures of the Land Transportation
Commission as provided for in the last proviso of Sec. 61.[44] (Underscoring supplied)
The P10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy, no doubt, was a big
burden on the seller or the ultimate consumer. It increased the price of a bag of fertilizer by as much as five percent.[45]
A plain reading of the LOI also supports the conclusion that the levy was for revenue generation. The LOI expressly
provided that the levy was imposed until adequate capital is raised to make PPI viable.
Taxes are exacted only for a public purpose. The P10 levy is unconstitutional because it was not for a public purpose. The
levy was imposed to give undue benefit to PPI.
An inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They
cannot be used for purely private purposes or for the exclusive benefit of private persons.[46] The reason for this is
simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be
used only for a public purpose. It would be a robbery for the State to tax its citizens and use the funds generated for a
private purpose. As an old United States case bluntly put it: To lay with one hand, the power of the government on the
property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up
private fortunes, is nonetheless a robbery because it is done under the forms of law and is called taxation.[47]
The term public purpose is not defined. It is an elastic concept that can be hammered to fit modern standards.
Jurisprudence states that public purpose should be given a broad interpretation. It does not only pertain to those
purposes which are traditionally viewed as essentially government functions, such as building roads and delivery of basic
services, but also includes those purposes designed to promote social justice. Thus, public money may now be used for
the relocation of illegal settlers, low-cost housing and urban or agrarian reform.
While the categories of what may constitute a public purpose are continually expanding in light of the expansion of
government functions, the inherent requirement that taxes can only be exacted for a public purpose still stands. Public
379
purpose is the heart of a tax law. When a tax law is only a mask to exact funds from the public when its true intent is to
give undue benefit and advantage to a private enterprise, that law will not satisfy the requirement of public purpose.
The purpose of a law is evident from its text or inferable from other secondary sources. Here, We agree with the RTC
and that CA that the levy imposed under LOI No. 1465 was not for a public purpose.
First, the LOI expressly provided that the levy be imposed to benefit PPI, a private company. The purpose is explicit from
Clause 3 of the law, thus:
3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution
component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to
make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the
Philippines.[48] (Underscoring supplied)
It is a basic rule of statutory construction that the text of a statute should be given a literal meaning. In this case, the text
of the LOI is plain that the levy was imposed in order to raise capital for PPI. The framers of the LOI did not even hide the
insidious purpose of the law. They were cavalier enough to name PPI as the ultimate beneficiary of the taxes levied
under the LOI. We find it utterly repulsive that a tax law would expressly name a private company as the ultimate
beneficiary of the taxes to be levied from the public. This is a clear case of crony capitalism.
Second, the LOI provides that the imposition of the P10 levy was conditional and dependent upon PPI becoming
financially viable. This suggests that the levy was actually imposed to benefit PPI. The LOI notably does not fix a
maximum amount when PPI is deemed financially viable. Worse, the liability of Fertiphil and other domestic sellers of
fertilizer to pay the levy is made indefinite. They are required to continuously pay the levy until adequate capital is
raised for PPI.
Third, the RTC and the CA held that the levies paid under the LOI were directly remitted and deposited by FPA to Far East
Bank and Trust Company, the depositary bank of PPI.[49] This proves that PPI benefited from the LOI. It is also proves
that the main purpose of the law was to give undue benefit and advantage to PPI.
Fourth, the levy was used to pay the corporate debts of PPI. A reading of the Letter of Understanding[50] dated May 18,
1985 signed by then Prime Minister Cesar Virata reveals that PPI was in deep financial problem because of its huge
corporate debts. There were pending petitions for rehabilitation against PPI before the Securities and Exchange
Commission. The government guaranteed payment of PPIs debts to its foreign creditors. To fund the payment, President
Marcos issued LOI No. 1465.
It is clear from the Letter of Understanding that the levy was imposed precisely to pay the corporate debts of PPI. We
cannot agree with PPI that the levy was imposed to ensure the stability of the fertilizer industry in the country. The letter
of understanding and the plain text of the LOI clearly indicate that the levy was exacted for the benefit of a private
corporation.
All told, the RTC and the CA did not err in holding that the levy imposed under LOI No. 1465 was not for a public
purpose. LOI No. 1465 failed to comply with the public purpose requirement for tax laws.
The LOI is still unconstitutional even if enacted under the police power; it did not promote public interest.
Even if We consider LOI No. 1695 enacted under the police power of the State, it would still be invalid for failing to
comply with the test of lawful subjects and lawful means. Jurisprudence states the test as follows: (1) the interest of the
public generally, as distinguished from those of particular class, requires its exercise; and (2) the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.[52]
For the same reasons as discussed, LOI No. 1695 is invalid because it did not promote public interest. The law was
enacted to give undue advantage to a private corporation. We quote with approval the CA ratiocination on this point,
thus:
380
It is upon applying this established tests that We sustain the trial courts holding LOI 1465 unconstitutional. To be sure,
ensuring the continued supply and distribution of fertilizer in the country is an undertaking imbued with public interest.
However, the method by which LOI 1465 sought to achieve this is by no means a measure that will promote the public
welfare. The governments commitment to support the successful rehabilitation and continued viability of PPI, a private
corporation, is an unmistakable attempt to mask the subject statutes impartiality. There is no way to treat the self-
interest of a favored entity, like PPI, as identical with the general interest of the countrys farmers or even the Filipino
people in general. Well to stress, substantive due process exacts fairness and equal protection disallows distinction
where none is needed. When a statutes public purpose is spoiled by private interest, the use of police power becomes a
travesty which must be struck down for being an arbitrary exercise of government power. To rule in favor of appellant
would contravene the general principle that revenues derived from taxes cannot be used for purely private purposes or
for the exclusive benefit of private individuals. (Underscoring supplied)
The general rule is that an unconstitutional law is void; the doctrine of operative fact is inapplicable.
PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the
doctrine of operative fact, which provides that an unconstitutional law has an effect before being declared
unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be
unconstitutional.
We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been
raised in the court a quo.[53] PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA.
It cannot belatedly raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law.
At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no
rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it
has not been passed.[54] Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in
accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of
the Civil Code, which provides:
ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse
or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall
govern.
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play.[55] It
nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot
always be erased by a new judicial declaration.[56]
The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have
relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the
accused in double jeopardy[57] or would put in limbo the acts done by a municipality in reliance upon a law creating
it.[58]
Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It
unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its
bank account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly
enrich PPI at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that every person who, through an
act of performance by another comes into possession of something at the expense of the latter without just or legal
ground shall return the same to him. We cannot allow PPI to profit from an unconstitutional law. Justice and equity
dictate that PPI must refund the amounts paid by Fertiphil.
WHEREFORE, the petition is DENIED. The Court of Appeals Decision dated November 28, 2003 is AFFIRMED.
SO ORDERED.
381
G.R. No. 112399 July 14, 1995
REPRESENTATIVE AMADO S. BAGATSING, petitioner,

vs.
COMMITTEE ON PRIVATIZATION, PHILIPPINE NATIONAL OIL COMPANY and THE HONORABLE EXECUTIVE SECRETARY,
respondents
The petition for prohibition in G.R. No. 112399 sought: (1) to nullify the bidding conducted for the sale of a block of
shares constituting 40% of the capital stock (40% block) of Petron Corporation (PETRON) and the award made to Aramco
Overseas Company, B.V. (ARAMCO) as the highest bidder in the bidding conducted on December 15, 1993; and (2) to
stop the sale of said block of shares to ARAMCO. The Supplemental Petition in said case sought to annul the bidding of
the 40% block held on December 15, 1993 and to set aside the award given to ARAMCO (Rollo, pp. 94-99).
The petition for prohibition and certiorari in G.R. No. 115994 sought to annul the sale of the same block of Petron shares
subject of the petition in G.R. No. 112399.
The petition in G.R. No. 112399 asked for the issuance of a temporary restraining order to stop respondents from selling
the 40% block to a foreign buyer (Rollo, p. 15). The petition for a temporary restraining order was reiterated in a motion
filed subsequently (Rollo, pp. 107-108).
The petition in G.R. No. 115994 asked for the issuance of a temporary restraining order and a writ of preliminary
injunction to restrain and enjoin public respondents "from proceeding with the projected initial public offering on July
18, 1994 of the 20% of Petron" (Rollo, p. 33).
The Urgent Supplemental Petition in said case reiterated the prayer for the immediate issuance of a preliminary
injunction to enjoin the initial public offering of the Petron shares (Rollo, pp. 223-225).
Actions on the petitions and motions for the issuance of a temporary restraining order and a writ of preliminary
injunction were deferred.
The petition in G.R. No. 112399 was filed by Representative Amado S. Bagatsing while the petition in G.R. No. 115994
was filed by Senators Neptali A. Gonzales, Ernesto A. Maceda, John H. Osmea and Wigberto E. Taada, Representatives
Joker Arroyo and Amado D. Bagatsing and former Senator Rene A.V. Saguisag all in their capacity as members of
Congress, taxpayers and concerned citizens, except in the case of Mr. Saguisag, who sued as a private law practitioner,
member of the Integrated Bar of the Philippines, taxpayer and concerned citizen.
Respondent Monico V. Jacob was impleaded in G.R. No. 115994 in his capacity as President of respondent Philippine
National Oil Company (PNOC). At the time of the filing of the petition, he had ceased to be the President of PNOC and a
member of its governing board. However, he is the Chairman of the Board of Directors and Chief Executive Officer of
PETRON, a respondent in both cases. He asked for the dismissal of the petition on the ground that having ceased to be
PNOC President, petitioners had no more cause of action against him. We deny the motion in view of the fact that the
petition questions his acts as President of PNOC.
In G.R. No. 115994, ARAMCO entered a limited appearance to question the jurisdiction over its person, alleging that it is
a foreign company organized under the laws of the Netherlands, that it is not doing nor licensed to do business in the
Philippines, and that it does not maintain an office or a business address in and has not appointed a resident agent for
the Philippines (Rollo, p. 240).
PETRON was originally registered with the Securities and Exchange Commission (SEC) in 1966 under the corporate name
"Esso Philippines, Inc." (ESSO) as a subsidiary of Esso Eastern, Inc. and Mobil Petroleum Company, Inc.
In 1973, at the height of the world-wide oil crisis brought about by the Middle East conflicts, the Philippine government
acquired ESSO through the PNOC. ESSO became a wholly-owned company of the government under the corporate name
PETRON and as a subsidiary of PNOC.
382
In acquiring PETRON, the government aimed to have a buffer against the vagaries of oil prices in the international
market. It was felt that PETRON can serve as a counterfoil against price manipulation that might go unchecked if all the
oil companies were foreign-owned. Indeed, PETRON helped alleviate the energy crises that visited the country from
1973 to 1974, 1979 to 1980, and 1990 to 1991.
PETRON owns the largest, most modern complex refinery in the Philippines with a nameplate capacity of 155,000 barrels
per stream day. It is also the country's biggest combined retail and wholesale market of refined petroleum products. In
1992, it garnered a 39.8% share of all domestic products sold, and at year end its assets totalled P24.4 billion. PETRON's
income as of September 1993 was P2.7 billion. It is listed as the No. 1 corporation in terms of assets and income in the
Philippines.
On December 8, 1986, President Corazon C. Aquino promulgated Proclamation No. 50 in the exercise of her legislative
power under the Freedom Constitution.
The Proclamation is entitled "Proclaiming and Launching a Program for the Expeditious Disposition and Privatization of
Certain Government Corporations and/or the Assets thereof, and Creating the Committee on Privatization and the Asset
Privatization Trust."
Implicit in the Proclamation is the need to raise revenue for the Government and the ideal of leaving business to the
private sector. The Government can then concentrate on the delivery of basic services and the performance of vital
public functions.
On December 2, 1991, President Fidel V. Ramos noted that "[t]he privatization program has proven successful and
beneficial to the economy in terms of expanding private economic activity, improving investment climate, broadening
ownership base and developing capital markets, and generating substantial revenues for priority government
expenditure," but "[t]here is still much potential for harnessing private initiative to undertake in behalf of government
certain activities which can be more effectively and efficiently undertaken by the private sector" (G.R. No. 112399, Rollo,
p. 31).
In its meeting held on September 9, 1992, the PNOC Board of Directors approved Specific Thrust No. 6 and moved "to
bring to the attention of the Administration the need to privatize Petron whether or not there will be deregulation [of
the oil industry]" (G.R. No. 112399, Rollo p. 67).
In a letter dated October 21, 1992, Secretary Ramon R. Del Rosario, as Chairman of the Committee on Privatization,
endorsed to President Ramos the proposal of PNOC to "privatize 65% of the stock of Petron, open to both foreign as well
as domestic investors." Secretary Del Rosario added: "The entry of foreign investors in this field is expected to result in
improved technology and know-how and will enable Petron to have access to international information network as well
as access to external markets and refining contracts" (G.R. No. 112399, Rollo, p. 72).
On January 4, 1993, a follow-up letter was sent by Secretary Del Rosario informing the President that: "The privatization
of Petron, recommended by both the management of Philippine National Oil Company (PNOC) and the Committee on
Privatization (COP), will send the right signals that may re-ignite investor interest in the Philippines for 1993" (G.R. No.
112399, Rollo, p. 73).
In a letted dated January 6, 1993, Secretary designate Delfin L. Lazaro of the Department of Energy, favorably endorsed
for approval the plan to sell up to 65% of the capital stock of PETRON. He also noted that the said plan was "consistent
with the Energy Sector Action Plan approved by the President and the Cabinet on November 27, 1992" (G.R. No. 112399,
Rollo, p. 74).
On January 12, 1993, the Cabinet approved the privatization of PETRON as part of the Energy Sector Action Plan.
On March 25, 1993, the Government Corporate Monitoring and Coordinating Committee (GCMCC) recommended a
100% privatization of PETRON.
383
On March 31, 1993, the PNOC Board of Directors passed a resolution authorizing the company to negotiate and
conclude a contract with the consortium of Salomon Brothers of Hongkong Limited and PCI Capital Corporation for
financial advisory services to be rendered to PETRON.
On April 1, 1993, the GCMCC recommended to COP the privatization of only 65% of the capital stock of PETRON, instead
of the 100% privatization previously recommended.
On June 10, 1993, in a letter addressed to Secretary Ernesto C. Leung, the COP Chairman, President Ramos approved the
privatization of PETRON up to a maximum of 65% of its capital stock.
The Petron Privatization Working Committee (PWC) was thus formed. It finalized a privatization strategy with 40% of the
shares to be sold to a strategic partner and 20% to the general public through the initial public offering and employees
stock option plan.
The Commission on Audit (COA) was consulted as to the valuation methodologies and privatization process. The
privatization plan was also presented to the COP on July 23, 1993, and to the President on July 31, 1993 for their
approval.
On August 10, 1993, the President approved the 40% 40% 20% privatization strategy of PETRON. In the press
release on the presidential approval of the said privatization, the Office of the President commented:
For Petron, gaining a long-term strategic partner that will ensure stable crude oil supplies and/or advance its
technological and financial position will be a definite advantage. In addition, its partial privatization will provide the
flexibility and level playing field it needs to remain a major, and therefore influential player in the oil industry. In 1992,
Petron dominated the oil industry with a commanding 40% market share (G.R. No. 112399, Rollo, p. 83).
The invitation to bid was published in several newspapers of general circulation, both local and foreign. The deadline for
the submission of proposals was set for December 15, 1993 at 5:00 P.M.
PETRON furnished the Office of the Solicitor General (OSG) with copies of the draft of the stock purchase agreement and
shareholders' agreement, with a request for the review of the same.
In a meeting of the Petron PWC held on December 15, 1993 at 12:00 noon, it decided that Westmont Holdings
(WESTMONT) was disqualified from participating in the bidding for its alleged failure to comply with the technical and
financial requirements for a strategic partner.
Salomon Brothers valued PETRON at US$600 million and the 40% block at US$240 million. For the entire Petron shares,
respondent Secretary Lazaro proposed a valuation of US$1.4 billion; Petron management, US$857 million; and Frances
Onate, a member of the Petron PWC, a valuation of US$743 million to US$1 billion.
Finally, the floor price bid for the 40% block was fixed at US$440 million.
The bids of Petroliam Nasional Berhad (PETRONAS), ARAMCO and WESTMONT were submitted while the floor price was
being discussed.
At about 6:15 P.M. and before the bids were opened, WESTMONT through its representative, Manuel Estrella,
submitted additional documents to prove its financial capability to carry out the purchase of the 40% block. The PNOC
Board of Directors adopted Resolution No. 865, S. 1993, rejecting the bid of WESTMONT for not having met the pre-
qualification criteria of financial capability, long-term crude supply availability, and technical and management expertise
in the oil business. It was further resolved that the bid submitted by WESTMONT would be returned unopened.
At 6:30 P.M., the other two bids were opened. The bid of ARAMCO was for US$502 million while the bid of PETRONAS
was for US$421 million. The PNOC Board of Directors then passed Resolution No. 866, S. 1993, declaring ARAMCO the
winning bidder.
384
On December 15, 1993, the OSG informed PETRON that the drafts of the stock purchase agreement and shareholders'
agreement contained no legally objectionable provisions and could be the basis for PETRON's negotiation with the
winning bidder.
On December 16, 1993, respondent Monico Jacob, in his capacity as President and Chief Executive Officer of PNOC,
endorsed to the COP the bid of ARAMCO for approval. The COP gave its approval on the same day. Also on the same
day, Manuel Estrella filed a complaint in behalf of WESTMONT with PNOC, questioning the award of the 40% block of
Petron shares to ARAMCO. The COP answered Estrella's letter on January 14, 1994, explaining why WESTMONT's bid
was returned unopened.
On February 3, 1994, PNOC and ARAMCO signed the Stock Purchase Agreement and on March 4, 1994, the two
companies signed the Shareholders' Agreement.
Public respondents submitted to the Securities and Exchange Commission (SEC) a proposed price for the initial public
offering of the 20% block set for July 18, 1994, the second phase of PETRON's privatization. PETRON proposed a price of
between P7.00 and P16.00 per share but the SEC approved a price of P9.00 per share.
II
PETRON questions the locus standi of petitioners to file the action (Rollo, pp. 479-484). Petitioners however, countered
that they filed the action in their capacity as members of Congress.
In Philippine Constitution Association v. Hon. Salvador Enriquez, G.R. No. 113105, August 19, 1994, we held that the
members of Congress have the legal standing to question the validity of acts of the Executive which injures them in their
person or the institution of Congress to which they belong. In the latter case, the acts cause derivative but nonetheless
substantial injury which can be questioned by members of Congress (Kennedy v. James, 412 F. Supp. 353 [1976]). In the
absence of a claim that the contract in question violated the rights of petitioners or impermissibly intruded into the
domain of the Legislature, petitioners have no legal standing to institute the instant action in their capacity as members
of Congress.
However, petitioners can bring the action in their capacity as taxpayers under the doctrine laid down in Kilosbayan, Inc.
v. Guingona, 232 SCRA 110 (1994). Under said ruling, taxpayers may question contracts entered into by the national
government or government-owned or controlled corporations alleged to be in contravention of the law. As long as the
ruling in Kilosbayan on locus standi is not reversed, we have no choice but to follow it and uphold the legal standing of
petitioners as taxpayers to institute the present action.
III
A. Petitioners in G.R. Nos. 112399 and 115994 claim that the inclusion of PETRON in the privatization program
contravened the declared policy of the State to dispose of only non-performing assets of the government and
government-owned or controlled corporations which have been found unnecessary or inappropriate for the government
sector to maintain. They contend that PETRON is neither a non-performing asset nor is it unnecessary or inappropriate
for the government to maintain or operate (G.R. No. 112399, Rollo, pp. 3-4, 8-13; G.R. No. 115994, Rollo, pp. 14-17, 216-
217).
To say that only non-performing assets should be the subject of privatization does not conform with the realities of
economic life. In the world of business and finance, it is difficult to sell a business in dire, financial distress. As
entrepreneur Don Eugenio Lopez used to advert to his younger executives: "Don't buy headaches. Don't even accept
them if they are offered to you on a silver platter." It is only in a fire sale that the government can expect to get rid of its
non-performing assets, more so if the sequencing pattern insisted by petitioners (initial public offering of 10% block to
small investors) is followed.
While Proclamation No. 50 mandates that non-performing assets should promptly be sold, it does not prohibit the
disposal of the other kinds of assets, whether performing, necessary or appropriate.
Section 1 of the Proclamation reads:

385
Statement of Policy. It shall be the policy of the State to promote privatization through an orderly, coordinated and
efficient program for the prompt disposition of the large number of non-performing assets of the government financial
institutions, and certain government-owned or controlled corporations which have been found unnecessary or
inappropriate for the government sector to maintain.
The said provision classifies two types of assets: (1) Non-performing assets of government financial institutions; and (2)
Government-owned or controlled corporations which have been found unnecessary or inappropriate for the
government sector to maintain.
Under the Proclamation, it is the COP which is tasked with the duty of identifying and arranging the sale of government
assets. Section 5(1) of the Proclamation provides:
Powers and Functions. The Committee shall have the following powers and functions:
(1) To identify to the President of the Philippines, and arrange for transfer to the National Government and/or to
the Trust and the subsequent divestment to the private sector of (a) such non-performing assets as may be identified by
the Committee, and approved by the President, for transfer from the government banks for disposal by the Trust or the
government banks, and (b) such government corporations, whether parent or subsidiary, and/or such of their assets, as
may have been recommended by the Committee for disposition, and Provided, that no such identification,
recommendation or approval shall be necessary where a parent corporation decides on its own to divest of, in whole or
in part, or liquidate a subsidiary corporation organized under the Corporation Code; Provided further, that any such
independent disposition shall be undertaken with the prior approval of the Committee and in accordance with the
general disposition guidelines as the Committee may provide; Provided, finally, that in every case the sale or disposition
shall be approved by the Committee with respect to the buyer and price only; (Emphasis supplied).
xxx xxx xxx
After a long study by PNOC, PETRON was found to be "inappropriate or unnecessary" for the government to maintain
because refining and marketing of petroleum is an aspect of the industry which is better left to the private sector. In
making such finding, PNOC was guided by Section 4(a) of Proclamation No. 50, which provides:
. . . (a) divesting to the private sector in the soonest possible time through the appropriate disposition entities, those
assets with viable productive potential as going concerns, taking into account where appropriate the implications of
such transfers on sectoral productive capacities and market limitation, . . . . These objectives are to be pursued within
the context of furthering the national economy through strengthened and revitalized private enterprise system.
The decision of PNOC to privatize PETRON and the approval of the COP of such privatization, being made in accordance
with Proclamation No. 50, cannot be reviewed by this Court. Such acts are exercises of the executive function as to
which the Court will not pass judgment upon or inquire into their wisdom (Llamas v. Orbos, 202 SCRA 844 [1991]).
Such identification by the COP of the government corporations to be privatized was not even necessary in the case of
PETRON. Under Section 5(1) of Proclamation No. 50 ". . . [N]o such identification, recommendation or approval shall be
necessary where a parent corporation decides on its own to divest of, in whole or in part, or liquidate a subsidiary
corporation organized under the Corporation Code; . . . ."
The only participation of the COP in the sale of the Petron shares by PNOC, the parent corporation, was the approval of
the buyers and price. The last sentence of paragraph (1) of Section 5 provides:
. . . Provided, finally, that in every case the sale or disposition shall be approved by the Committee with respect to the
buyer and price only.
PNOC, in privatizing PETRON, was simply exercising its corporate power to dispose of all or a portion of its shares in a
subsidiary. PNOC was created under P.D. No. 334, as amended by P.D. No. 927, which empowers it to acquire shares of
the capital stock of any other corporation and to dispose of the same shares.
386
Besides, if only non-performing assets are intended to be sold, it would be unnecessary to provide in the Proclamation
for the rehabilitation of government corporations to make the same more attractive to investors and potential buyers.
Section 5 (5) of Proclamation No. 50 provides:
In its discretion, to approve or disapprove, subject to the availability of funds for such purpose, the rehabilitation of
assets pending disposition by the Trust or any other government agency authorized by the Committee, or the Trust with
the approval of the Committee, Provided that, the budget for each rehabilitation project shall be likewise subject to
prior approval by the Committee.
Nowhere in the Proclamation can one infer that it prohibits a partial privatization of vital, appropriate and performing
corporations owned by the government.
Proclamation No. 50 contained an Annex listing the corporations to be privatized and those to be retained. While
PETRON was mentioned among the corporations to be retained, Section 6 of the Proclamation directed a continuing
study on what corporations should be recommended for privatization.
It is markworthy that the said Annex did not indicate the percentage of shares that will be privatized or that will be
retained. It can be interpreted to mean that all the shares of the corporations in the list to be privatized may be sold,
while only some of the shares of the other corporations may be sold. It is also worthy of note that the list of
corporations to be retained added the phrase "As of 31 August 1992," meaning that any of the corporations mentioned
therein may be delisted after that date if a study would justify such action.
The government is not disposing of all of its shares in PETRON but is retaining a 40% block. Together with the widely-
held 20% of the private sector control of PETRON by the government is assured. With such equity in PETRON, the
government can also maintain a window to the oil industry and at the same time share in the profits of the company.
The privatization of PETRON could well be undertaken under laws other than Proclamation No. 50.
Of significance is Section 2(c) of R.A. No. 7181, which provides that:
Privatization of government assets classified as a strategic industry by the National Economic and Development
Authority shall first be approved by the President of the Philippines (Emphasis supplied).
Section 6, the repealing clause of R.A. No. 7181, expressly repealed Sections 3 and 10 of Proclamation No. 50 and all
other laws, orders and rules and regulations which are inconsistent therewith.
The only requirement under R.A. No. 7181 in order to privatize a strategic industry like PETRON is the approval of the
President. In the case of PETRON's privatization, the President gave his approval not only once but twice.
PETRON's privatization is also in line with and is part of the Philippine Energy Program under R.A. No. 7638. Section 5(b)
of the law provides that the Philippine Energy Program shall include a policy direction towards the privatization of
government agencies related to energy.
Under P.D. No. 334, the law creating PNOC, said corporation is granted the authority "[t]o establish and maintain offices,
branches, agencies, subsidiaries, correspondents or other units anywhere as may be needed by the Company and
reorganize or abolish the same as it may deem proper."
B. Petitioners next question the regularity and validity of the bidding (G.R. No. 112399, Rollo, pp. 97-99; G.R. No.
115994, Rollo, pp. 17-24, 221). Petitioners in G.R. No. 115994 claim that the public bidding was tainted with haste and
arbitrariness and that there was a failed bidding because there was only one offeror (Rollo, pp. 17-24).
Taking the cudgels for WESTMONT, petitioners urge that said bidder was only given two days to conduct a review
PETRON's vast business operations in order to comply with the technical and financial requirements for pre-
qualification. Petitioners also complain that the pre-qualification and actual bidding were conducted on the same day,
thus denying a disqualified bidder an opportunity to protest or to appeal. They question the fixing of the floor price on
387
the same day as the public bidding and only after the bids had been submitted. Likewise, they say that the approval of
the bid of ARAMCO by the Assets Privatization Trust on the same day it is submitted is anomalous (G.R. No. 115994,
Rollo, pp. 22-24).
On the claim that there was a failed bidding, petitioners contend that there were only three bidders. One of them,
PETRONAS, submitted a bid lower than the floor price while a second, failed to pre-qualify. Citing Section V-2-a of COA
Circular No. 89-296 dated January 27, 1989, they argue that where only one bidder qualifies, there is a failure of public
auction (G.R. No. 115994, Rollo, p. 22).
When a failure of bidding takes place is defined in Circular No. 89-296 of the Commission on Audit, which prescribes the
"Audit Guidelines on the Divestment or Disposal of Property and other Assets of the National Government Agencies and
Instrumentalities, Local Government Units and Government-Owned or Controlled Corporations and their Subsidiaries."
V. MODES OR DISPOSAL/DIVESTMENT:
xxx xxx xxx
2 Sale Thru Negotiation
For justifiable reasons and as demanded by the exigencies of the service, disposal thru negotiated sale may be resorted
to and undertaken by the proper committee or body in the agency or entity concerned taking into consideration the
following factors:
a. There was a failure of public auction. As envisioned in this Circular, there is a failure of public auction in any of
the following instances:
1 if there is only one offeror.
In this case, the offer or bid, if sealed, shall not be opened.
2 if all the offers/tenders are non-complying or unacceptable.
A tender is non-complying or unacceptable when it does not comply with the prescribed legal, technical and financial
requirement for pre-qualification.
Under said COA Circular, there is a failure of bidding when: 1) there is only one offeror; or (2) when all the offers are
non-complying or unacceptable.
In the case at bench, there were three offerors: SAUDI ARAMCO, PETRONAS and WESTMONT.
While two offerors were disqualified, PETRONAS for submitting a bid below the floor price and WESTMONT for technical
reasons, not all the offerors were disqualified. To constitute a failed bidding under the COA Circular, all the offerors must
be disqualified.
Petitioners urge that in effect there was only one bidder and that it can not be said that there was a competition on "an
equal footing" (G.R. No. 112399, Rollo, p. 122). But the COA Circular does not speak of accepted bids but of offerors,
without distinction as to whether they were disqualified.
The COA itself, the agency that adopted the rules on bidding procedure to be followed by government offices and
corporations, had upheld the validity and legality of the questioned bidding. The interpretation of an agency of its own
rules should be given more weight than the interpretation by that agency of the law it is merely tasked to administer.
The case of Danville Maritime, Inc. v. Commission on Audit, 175 SCRA 701 (1989), relied upon by petitioner, is
inappropriate. In said case, there was only one offeror in the bidding. The Court said: ". . . [I]f there is only one
participating bidder, the bidding is non-competitive and, hence, falls short of the requirement. There would, in fact, be
no bidding at all since, obviously, the lone participant cannot compete against himself."
388
C. According to petitioners, the law mandates the offer for sale of 10% of the Petron shares to small investors
before a sale of the 40% block of shares to ARAMCO can be made.
They theorize that the best way to determine the real market price of Petron shares was to first have a public offering as
required by R.A. No. 7181. The reverse procedure followed by private respondents, according to petitioners, gave
unwarranted benefits to private respondents because they bought the Petron shares at only P6.70 per share when the
shares fetched as high as P16.00 per share in the stock market (G.R. No. 115994, Rollo, pp. 24-27).
To bolster their theory, petitioners cite Section 2(d) of R.A. No. 7181, which provides:
A minimum of ten (10) percent of the sale of assets in corporation form shall first be offered to small local investors
including Filipino Overseas Workers and where practicable also in the sale of any physical asset.
Petitioners also invoke the Implementing Guidelines promulgated to implement R.A. No. 7181, which provides:
In the sale of assets in corporate form, at least 10% of the total shares for privatization shall first be offered to small local
investors. Employees Stock Ownership Plans (ESOPS) and public offerings shall count towards compliance with these
provisions . . . (Sec. 3).
We agree with PETRON that the language of Section 2(d) of R.A. No. 7181 does not mandate any sequencing for the
disposition of shares in a government-owned corporation being privatized.
It is the unfortunate use of the word "first" in Section 2(d) of R.A. No. 7181 that threw petitioners off track and caused
them to misread the provision as one requiring a mandatory sequencing of the sale. As a wit once said, if a centipede
would be compelled to follow a prescribed sequencing of its steps, it could never move an inch.
A reasonable reading of the provision is that it merely gives a right of first refusal by the small investors vis-a-vis the 10%
block of shares. As far as the 10% block is concerned, the small investors shall have a first chance to subscribe thereto
whenever it is offered. The offer may be made before, after or simultaneous with the offer of the shares to strategic
partners or major investors depending on the prevailing condition of the market. Certainly, in an initial public offering, it
is good judgment and business sense that should prevail, rather than the rigid and inflexible rules of step one, step two,
etc.
The Rules and Regulations issued by the COP to implement R.A. No. 7181 set aside 10% of the shares subject of the
privatization to be offered first to the small local investors, and made clear that as far as said 10% block is concerned,
the small investors shall have the first crack to buy the same. These Rules have been consistently applied in previous
privatizations, and they constitute a contemporaneous construction and interpretation of a law by the implementing,
administrative agency. Such construction is accorded great respect by the Court (Nestle Philippines, Inc. v. Court of
Appeals, 203 SCRA 504 [1991]).
What Congress clearly mandated in R.A. No. 7181 was that at least 10% of the shares of a privatized corporation must be
reserved and offered for sale to the general public. In the deliberation of the Congressional Committee on Government-
Owned and Controlled Corporations on December 18, 1991, the Committee spoke of having the 10% set aside without
impeding the privatization process.
Note that when the bidding of the 40% block of Petron shares had been announced, the 10% block for offering to the
small local investors had been identified, reserved and set aside. This is more than a substantial compliance with the
mandate of law.
There is great risk in first making an initial public offering of the 10% block before bidding out the 40% block to a
strategic partner. It may happen that the price of the shares offered initially to the public plunges below the offering
price approved by the SEC.
The sensitive market forces involved in initial public offerings render unrealistic any legislative mandate to follow a
sequencing in the sale of government-owned shares in the market. The legislators, practical men of affairs as they are,
389
were aware of the vagaries, variables and vicissitudes of the stock market when they enacted R.A. No. 7181. It is more
reasonable to read the said law as leaving to the COP and the government corporations concerned to determine the
sequencing of the sale to strategic investors and the general public. To require the offer of 10% to the general public
before the sale of a block to a strategic partner may delay or even impede the entire privatization program.
The clear policy behind Proclamation No. 50 is to give the COP and APT maximum flexibility in their operation to ensure
the most efficient implementation of the privatization program.
Under Section 5(3) of the Proclamation, full powers are given the COP to establish "mandatory as well as indicative
guidelines for . . . the disposition
of . . . assets." Under Section 12(2) thereof, the APT is given the "widest latitude of flexibility . . . particularly in the areas
of . . . disposition . . . ."
Petitioners can not rely on Opinion No. 126, Series of 1992 dated September 28, 1992. The query posed to the Secretary
of Justice in said opinion was the legality of the plan of National Development Corporation to pass on to the prospective
buyer of its shares in a local bank the responsibility of complying with the requirement prescribed in Section 2(d) of R.A.
No. 7181 that a minimum of 10% of the shares of a corporation "shall first be offered to small local investors . . . ." The
Secretary of Justice naturally opined that said proposal could not legally be done on the principal ground that the
"observance of this legal requirement is incumbent upon the disposition entity, which in this case is NDC, but as
contemplated, the sale to small investors shall be undertaken by the private buyer of the [local bank's] shares." The
query posed to the Secretary of Justice was not about the sequencing of the sale of the 10% block.
We can not see how the failure to dispose the 10% block to the general public before the sale of the 40% block to
ARAMCO gave the latter unwarranted benefits.
Actually ARAMCO paid a total of P14,671,985,306.00 for the acquisition of the Petron shares. This aggregate amount
represents in peso terms: (1) the US$502 million winning bid paid by ARAMCO to PNOC on March 4, 1994; and (2) the
additional amount of US$30,327,987.00 remitted on July 11, 1994, representing the "purchase price adjustment"
stipulated in the Stock Purchase Agreement. Consequently, ARAMCO's acquisition cost was P7.336 per share.
A fair comparison between the ARAMCO price and the IPO price should take into consideration the levels of financial,
legal and miscellaneous costs directly related to the ARAMCO purchase, including the consequent opportunity cost or
income to PNOC and the National Government, had the proceeds been invested in Philippine Treasury Bills from March
4 and July 11, respectively, to September 7, 1994. On this basis, the effective proceeds on the ARAMCO purchase
amount to P7.8559 per share, and not P6.70 as claimed by petitioners (G.R. No. 115994, Rollo, pp. 506-507). On the
other hand, the seller's expenses incurred in connection with the IPO, including taxes and other fees paid to the National
Government, reached a total of P833.081 million or P0.833 per share (G.R. No. 115944, Rollo, p. 507).
To make further a fair comparison between the two prices, the proceeds from the IPO should be net of PNOC's share in
PETRON's net income from March to August 1994, because in effect it was giving up this amount in favor of the IPO
investors. As projected, the total net income of PETRON from March to August 1994 is P1,870,500.00. Twenty percent of
this is P374,100.00 which translates to a per share reduction of P0.3741 from the IPO proceeds. This would further
erode the effective proceeds from the IPO sale to P7.7929 per share.
Finally, cash dividends of P2 billion and property dividends of P153 million, or a total of P2.153 billion was declared and
transferred to PNOC before the ARAMCO purchase was effected. Imputing such dividends would translate the effective
proceeds to PNOC from the ARAMCO sale to P8.2865 per share (P7.8559 plus P0.4306 [or 40% of P2.153 Billion]). Using
this figure, the IPO proceeds of P7.7929 per share is definitely lower than the ARAMCO proceeds of P8.2865.
Unlike the ordinary buyers of shares listed in the stock exchange, ARAMCO, as a strategic investor, had to spend for the
due diligence review of the business and records of PETRON.
Aside from this monetary considerations, PNOC derived the following value-added benefits:
390
1) PNOC is assured of an adequate supply of crude oil. The element of uncertainty on sources of crude oil supply is
reduced, if not eliminated, ARAMCO being the world's largest known producer and exporter of five different types of
crude oil.
2) PNOC's refinery can achieve optimum efficiency because of better crude slates.
3) ARAMCO has to hold on to the Petron shares for the next five years. Aside from its stabilizing effect on the
market price of Petron shares, this holding period will prevent ARAMCO from deriving any speculative gains. Unlike
ARAMCO, the buyers of the IPO can sell their shares any time without constraints.
4) ARAMCO's presence in PETRON has a tremendous, unquantifiable influence in investor's confidence in PETRON
as a publicly-listed company. This confidence could not be generated if PETRON's partner has a bad track record.
5) ARAMCO will assist PNOC in raising funds to finance the more than P12 billion in projected capital expenditures
required over the next four years to make PETRON competitive.
The pricing of shares of stock is a highly specialized field that is better left to the experts. It involves an inquiry into the
earning potential, dividend history, business risks, capital structure, management, asset values of the company; the
prevailing business climate; the political and economic conditions; and a myriad of other factors that bear on the
valuation of shares (Van Horne, Financial Management and Policy 652-653 [8th ed.]); Leffler and Farwell, The Stock
Market 573-575 [3rd ed.]).
D. Finally, petitioners contend that PETRON is a public utility, in which foreign ownership of its equity shall not
exceed 40% thereof and the foreign participation in the governing body shall be limited to their proportionate share in
its capital. According to petitioners, ARAMCO is entitled only to a maximum of four seats in the ten-man board but was
given five seats (G.R. No. 112389, Rollo, pp. 30-64; G.R. No. 115994, Rollo, pp. 30-31, 202-212).
This issue hinges on whether the business of oil refining is a "public utility" within the purview of Section 11, Article XII of
the 1987 Constitution (adopted from Sec. 5, Art. XIV of the 1973 Constitution), which provides:
No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except
to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty
per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive
in character for a longer period than fifty years. Neither shall any such franchise or right be granted except under the
condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so
requires. The State shall encourage equity participation in public utilities by the general public. The participation of
foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its
capital and all the executive and managing officers of such corporation or association must be citizens of the Philippines
(Emphasis supplied).
Implementing Section 8 of Article XIV of the 1935 Constitution, the progenitor of Section 5 of Article XIV of the 1973
Constitution, is Section 13(b) of the Public Service Act, which provides:
The term "public service" includes every person that now or hereafter may own, operate, manage, or control in the
Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional, or accidental
and done for general business purposes, any common carrier, railroad, street railway, . . . and other similar public
services: . . . .
More pertinent is Section 7 of R.A. No. 387, the Petroleum Act of 1949, which provides:
Petroleum operation a public utility. Everything relating to the exploration for and exploitation of petroleum which
may consist naturally or below the surface of the earth, and everything relating to the manufacture, refining, storage, or
transportation by special methods of petroleum, as provided for in this Act, is hereby declared to be of public utility
(Rollo, p. 519; Emphasis supplied).
391
A "public utility" under the Constitution and the Public Service Law is one organized "for hire or compensation" to serve
the public, which is given the right to demand its service. PETRON is not engaged in oil refining for hire and
compensation to process the oil of other parties.
Likewise, the activities considered as "public utility" under Section 7 of R.A. No. 387 refer only to petroleum which is
indigenous to the Philippines. Hence, the refining of petroleum products sourced from abroad as is done by Petron, is
not within the contemplation of the law.
We agree with the opinion of the Secretary of Justice that the refining of imported crude oil is not regulated by, nor is it
within the scope and purview of the Petroleum Act of 1949. He said:
Examination of our statute books fails to reveal any law or legal provision which, in explicit terms, either permits or
prohibits the establishment and operation of oil refineries that would refine only imported crude oil (Opinion, No. 267,
S. 1955).
WHEREFORE, the petitions are DISMISSED.
392

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G.R. No.

160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

Article XI of our present 1987 Constitution provides:

Accountability of Public Officers

11TH CONGRESS RULES

12TH CONGRESS NEW RULES

BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL

BAR AGAINST IMPEACHMENT

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

g) judicial restraint (Italics in the original)

I suppose nobody can question it.

Essential Requisites for Judicial Review

Ripeness and Prematurity

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

MR. NOLLEDO. And so, is this only an example?

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, certainly not.

These petitions raise five substantial issues:

More recently in the case of Estrada v. Desierto,132 it was held that:

1. that there be absolute necessity of deciding a case

3. that judgment may not be sustained on some other ground

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

1. actual case or controversy calling for the exercise of judicial power

3. the question of constitutionality must be raised at the earliest possible opportunity

Constitutionality of the Rules of Procedure

refers to two objects, "impeachment case" and "impeachment proceeding."

Validity of the Second Impeachment Complaint

CIVIL LIBERTIES UNION, petitioner,

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

We rule in the negative.

[G.R. No. 122156. February 3, 1997]

Pertinent provisions of the bidding rules prepared by respondent GSIS state -

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO. Yes.[16]

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. Is that the intention?

MR. MONSOD. We agree, Madam President.[39]

The phrase preference to qualified Filipinos was explained thus -

MR. NOLLEDO. Obviously.

MR. NOLLEDO. The answer is yes.

MR. FOZ. Thank you.[41]

MANUEL B. IMBONG, petitioner,

G.R. No. L-32443 September 11, 1970

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or

In the apt words of the Solicitor General:

xxx xxx xxx

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,

Arturo M. Tolentino in his own behalf.

Intervenors in their own behalf.