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UDK-15143 January 21, 2015 In the first week of July 2014, Ilocos Norte Representative Rodolfo Farias

filed House Bill No. 4690, which would require this court to remit its Judiciary
IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL Development Fund collections to the national treasury.13
INDEPENDENCE AND FISCAL AUTONOMY MOVEMENT VS. ABOLITION
OF JUDICIARY DEVELOPMENT FUND (JDF) AND REDUCTION OF A week later, or on July 14, 2014, Iloilo Representative Niel Tupas, Jr., filed
FISCAL AUTONOMY. House Bill No. 4738 entitled "The Act Creating the Judicial Support Fund
(JSF) under the National Treasury, repealing for the purpose Presidential
RESOLUTION Decree No. 1949."14

LEONEN, J.: On the same day, President Benigno Simeon C. Aquino III addressed the
nation:
This case involves the proposed bills abolishing the Judiciary Development
Fund1 and replacing it with the "Judiciary Support Fund." Funds collected My message to the Supreme Court: We do not want two equal branches of
from the proposed Judiciary Support Fund shall be remitted to the national government to go head to head, needing a third branch to step in to
treasury and Congress shall determine how the funds will be used.2 intervene. We find it difficult to understand your decision. You had done
something similar in the past, and you tried to do it again; there are even
Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of those of the opinion that what you attempted to commit was graver, if we
mandamus in order to compel this court to exercise its judicial independence were to base it on your decision. Abiding by the principle of "presumption of
regularity," we assumed that you did the right thing; after all, you are the
and fiscal autonomy against the perceived hostility of Congress.3
ones who should ostensibly have a better understanding of the law. And
now, when we use the same mechanismwhich, you yourselves have
This matter was raised to this court through the letter4 dated August 27, admitted, benefit our countrymenwhy is it then that we are wrong?
2014, signed by Mijares and addressed to the Chief Justice and the
Associate Justices of the Supreme Court. The letter is captioned:
We believe that the majority of you, like us, want only the best for the Filipino
people. To the honorable justices of the Supreme Court: Help us help our
Petition for Mandamus with Manifestation to invoke the Judicial countrymen. We ask that you review your decision, this time taking into
Independence and Fiscal Autonomy as mandated under the Constitution5 consideration the points I have raised tonight. The nation hopes for your
careful deliberation and response. And I hope that once youve examined the
The letter was referred to the Clerk of Court En Banc for appropriate action.6 arguments I will submit, regarding the law and about our economy, solidarity
It was then docketed as UDK-15143.7 will ensuethus strengthening the entire governments capability to push for
the interests of the nation.15
In the letter-petition, Mijares alleges that he is "a Filipino citizen, and a
concerned taxpayer[.]"8 He filed this petition as part of his "continuing The issue for resolution is whether petitioner Rolly Mijares has sufficiently
crusade to defend and uphold the Constitution"9 because he believes in the shown grounds for this court to grant the petition and issue a writ of
rule of law.10 He is concerned about the threats against the judiciary after mandamus.
this court promulgated Priority Development Assistance Fund11 case on
November 19, 2013 and Disbursement Acceleration Program12 case on July Petitioner argues that Congress "gravely abused its discretion with a blatant
1, 2014. usurpation of judicial independence and fiscal autonomy of the Supreme
Court."16
The complaint implied that certain acts of members of Congress and the
President after the promulgation of these cases show a threat to judicial Petitioner points out that Congress is exercising its power "in an arbitrary and
independence. despotic manner by reason of passion or personal hostility by abolishing the
Judiciary Development Fund (JDF) of the Supreme Court."17
With regard to his prayer for the issuance of the writ of mandamus, petitioner ARTICLE VIII
avers that Congress should not act as "wreckers of the law"18 by threatening Judicial Department
"to clip the powers of the High Tribunal[.]"19 Congress committed a "blunder
of monumental proportions"20 when it reduced the judiciarys 2015 Section 1. The judicial power shall be vested in one Supreme Court and in
budget.21 such lower courts as may be established by law.

Petitioner prays that this court exercise its powers to "REVOKE/ABROGATE Judicial power includes the duty of the courts of justice to settle actual
and EXPUNGE whatever irreconcilable contravention of existing laws controversies involving rights which are legally demandable and enforceable,
affecting the judicial independence and fiscal autonomy as mandated under and to determine whether or not there has been a grave abuse of discretion
the Constitution to better serve public interest and general welfare of the amounting to lack or excess of jurisdiction on the part of any branch or
people."22 instrumentality of the Government. (Emphasis supplied)

This court resolves to deny the petition. One of the requirements for this court to exercise its power of judicial review
is the existence of an actual controversy. This means that there must be "an
The power of judicial review, like all powers granted by the Constitution, is existing case or controversy that is appropriate or ripe for determination, not
subject to certain limitations. Petitioner must comply with all the requisites for conjectural or anticipatory, lest the decision of the court would amount to an
judicial review before this court may take cognizance of the case. The advisory opinion."24 As emphasized by this court in Information Technology
requisites are: Foundation of the Phils. v. Commission on Elections:25

(1) there must be an actual case or controversy calling for the It is well-established in this jurisdiction that ". . . for a court to exercise its
exercise of judicial power; power of adjudication, there must be an actual case or controversy one
which involves a conflict of legal rights, an assertion of opposite legal claims
(2) the person challenging the act must have the standing to susceptible of judicial resolution; the case must not be moot or academic or
question the validity of the subject act or issuance; otherwise stated, based on extra-legal or other similar considerations not cognizable by a court
he must have a personal and substantial interest in the case such of justice. . . . [C]ourts do not sit to adjudicate mere academic questions to
that he has sustained, or will sustain, direct injury as a result of its satisfy scholarly interest, however intellectually challenging." The controversy
enforcement; must be justiciable definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must
show an active antagonistic assertion of a legal right, on the one hand, and a
(3) the question of constitutionality must be raised at the earliest
denial thereof on the other; that is, it must concern a real and not a merely
opportunity; and
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
(4) the issue of constitutionality must be the very lis mota of the as distinguished from an opinion advising what the law would be upon a
case.23 hypothetical state of facts.26

Petitioners failure to comply with the first two requisites warrants the outright For this court to rule on constitutional issues, there must first be a justiciable
dismissal of this petition. controversy. Pleadings before this court must show a violation of an existing
legal right or a controversy that is ripe for judicial determination. In the
I concurring opinion in Belgica v. Ochoa:

The petition does not comply with the requisites of judicial review Basic in litigation raising constitutional issues is the requirement that there
must be an actual case or controversy. This Court cannot render an advisory
No actual case or controversy opinion. We assume that the Constitution binds all other constitutional
departments, instrumentalities, and organs. We are aware that in the
Article VIII, Section 1 of the Constitution provides that: exercise of their various powers, they do interpret the text of the Constitution
in the light of contemporary needs that they should address. A policy that This court held that:
reduces this Court to an adviser for official acts by the other departments that
have not yet been done would unnecessarily tax our resources. It is . . . petitioners instituted this petition to: (1) compel public
inconsistent with our role as final arbiter and adjudicator and weakens the respondents to hold the SK elections on May 6, 2002 and should it
entire system of the Rule of Law. Our power of judicial review is a duty to be postponed, the SK elections should be held not later than July 15,
make a final and binding construction of law. This power should generally be 2002; (2) prevent public respondents from passing laws and issuing
reserved when the departments have exhausted any and all acts that would resolutions and orders that would lower the membership age in the
remedy any perceived violation of right. The rationale that defines the extent SK. . . .
of our doctrines laying down exceptions to our rules on justiciability are clear:
Not only should the pleadings show a convincing violation of a right, but the
....
impact should be shown to be so grave, imminent, and irreparable that any
delayed exercise of judicial review or deference would undermine
fundamental principles that should be enjoyed by the party complaining or Petitioners prayer to prevent Congress from enacting into law a
the constituents that they legitimately represent.27 (Emphasis supplied) 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
The reason for this requirement was explained in Angara v. Electoral
creates no right and imposes no duty legally enforceable by the
Commission:28
Court. A proposed bill, having no legal effect, violates no constitution
alright or duty. The Court has no power to declare a proposed bill
Any attempt at abstraction could only lead to dialectics and barren legal constitutional or unconstitutional because that would be in the nature
questions and to sterile conclusions unrelated to actualities. Narrowed as its of rendering an advisory opinion on a proposed act of Congress. The
function is in this manner, the judiciary does not pass upon questions of power of judicial review cannot be exercised in vacuo. . . .
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 Thus, there can be no justiciable controversy involving the
representatives in the executive and legislative departments of the constitutionality of a proposed bill. The Court can exercise its power
government.29 of judicial review only after a law is enacted, not before.

Petitioners allegations show that he wants this court to strike down the Under the separation of powers, the Court cannot restrain Congress
proposed bills abolishing the Judiciary Development Fund. This court, from passing any law, or from setting into motion the legislative mill
however, must act only within its powers granted under the Constitution. This according to its internal rules. Thus, the following acts of Congress in
court is not empowered to review proposed bills because a bill is not a law. 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
Montesclaros v. COMELEC30 involved the postponement of the 2002
Bicameral Committee of approved bills, and the eventual approval
Sangguniang Kabataan Elections and the lowering of the age requirement in
into law of the reconciled bills by each chamber of Congress. Absent
the Sangguniang Kabataan "to at least 15 but not more than 18 years of
a clear violation of specific constitutional limitations or of
age."31 Montesclaros and other parties filed a petition for certiorari,
constitutional rights of private parties, the Court cannot exercise its
prohibition, and mandamus with prayer for the issuance of a temporary power of judicial review over the internal processes or procedures of
restraining order.32 One of the reliefs prayed for was: Congress.

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.33 . . . 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.34 (Emphasis Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public
supplied, citations omitted) Works and Anti-Chinese League of the Philippines v. Felix.38

Similar to Montesclaros, petitioner is asking this court to stop Congress from Petitioner has not shown that he has sustained or will sustain a direct injury if
passing laws that will abolish the Judiciary Development Fund. This court the proposed bill is passed into law. While his concern for judicial
has explained that the filing of bills is within the legislative power of Congress independence is laudable, it does not, by itself, clothe him with the requisite
and is "not subject to judicial restraint[.]"35 A proposed bill produces no legal standing to question the constitutionality of a proposed bill that may only
effects until it is passed into law. Under the Constitution, the judiciary is affect the judiciary.
mandated to interpret laws. It cannot speculate on the constitutionality or
unconstitutionality of a bill that Congress may or may not pass. It cannot rule This court, however, has occasionally relaxed the rules on standing when the
on mere speculations or issues that are not ripe for judicial determination.36 issues involved are of "transcendental importance" to the public. Specifically,
The petition, therefore, does not present any actual case or controversy that this court has stated that:
is ripe for this courts determination. Petitioner has no legal standing
the rule on standing is a matter of procedure, hence, can be relaxed for
Even assuming that there is an actual case or controversy that this court nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
must resolve, petitioner has no legal standing to question the validity of the the public interest so requires, such as when the matter is of transcendental
proposed bill. The rule on legal standing has been discussed in David v. importance, of overreaching significance to society, or of paramount public
Macapagal-Arroyo:37 interest.39

Locus standi is defined as "a right of appearance in a court of justice on a Transcendental importance is not defined in our jurisprudence, thus, in
given question." In private suits, standing is governed by the "real-parties-in Francisco v. House of Representatives:40
interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted or There being no doctrinal definition of transcendental importance, the
defended in the name of the real party in interest." Accordingly, the "real- following instructive determinants formulated by former Supreme Court
party-in interest" is "the party who stands to be benefited or injured by the
Justice Florentino P. Feliciano are instructive: (1) the character of the funds
judgment in the suit or the party entitled to the avails of the suit." Succinctly
or other assets involved in the case; (2) the presence of a clear case of
put, the plaintiffs standing is based on his own right to the relief sought.
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other
The difficulty of determining locus standi arises in public suits. party with a more direct and specific interest in raising the questions being
raised.41
Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal
official action, does so as a representative of the general public. He may be a A mere invocation of transcendental importance in the pleading is not
person who is affected no differently from any other person. He could be enough for this court to set aside procedural rules:
suing as a "stranger," or in the category of a "citizen," or taxpayer." In either
case, he has to adequately show that he is entitled to seek judicial protection.
Whether an issue is of transcendental importance is a matter determined by
In other words, he has to make out a sufficient interest in the vindication of
this court on a case-to-case basis. An allegation of transcendental
the public order and the securing of relief as a "citizen" or "taxpayer."
importance must be supported by the proper allegations.42

....
None of the determinants in Francisco are present in this case. The events
feared by petitioner are merely speculative and conjectural.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must have In addition to the determinants in Francisco, it must also be shown that there
"a personal and substantial interest in the case such that he has sustained, is a clear or imminent threat to fundamental rights. In an opinion in Imbong v.
or will sustain direct injury as a result." The Vera doctrine was upheld in a
Ochoa:43
litany of cases, such as, Custodio v. President of the Senate, Manila Race
The Responsible Parenthood and Reproductive Health Act of 2012 should may file a verified petition in the proper court, alleging the facts with certainty
not be declared unconstitutional in whole or in any of its parts given the and praying that judgment be rendered commanding the respondent,
petitions filed in this case. immediately or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to pay the
None of the petitions properly present an "actual case or controversy," which damages sustained by the petitioner by reason of the wrongful acts of the
deserves the exercise of our awesome power of judicial review. It is our duty respondent.
not torule on the abstract and speculative issues barren of actual facts.
These consolidated petitions, which contain bare allegations, do not provide The petition shall also contain a sworn certification of non-forum shopping as
the proper venue to decide on fundamental issues. The law in question is provided in the third paragraph of section 3, Rule 46.
needed social legislation.
The writ of mandamus will issue when the act sought to be performed is
That we rule on these special civil actions for certiorari and prohibition ministerial.45 An act is ministerial when it does not require the exercise of
which amounts to a pre-enforcement free-wheeling facial review of the judgment and the act is performed in compliance with a legal mandate.46 In
statute and the implementing rules and regulations is very bad precedent. a petition for mandamus, the burden of proof is on petitioner to show that one
The issues are far from justiciable. Petitioners claim in their class suits that is entitled to the performance of a legal right and that respondent has a
they entirely represent a whole religion, the Filipino nation and, worse, all the corresponding duty to perform the act.47 Mandamus will not lie "to compel
unborn. The intervenors also claim the same representation: Filipinos and an official to do anything which is not his duty to do or which it is his duty not
Catholics. Many of the petitions also sue the President of the Republic. to do, or to give to the applicant anything to which he is not entitled by
law."48
We should apply our rules rigorously and dismiss these cases. The
transcendental importance of the issues they want us to decide will be better In this case, petitioner has not shown how he is entitled to the relief prayed
served when we wait for the proper cases with the proper parties suffering for. Hence, this court cannot be compelled to exercise its power of judicial
real, actual or more imminent injury. There is no showing of an injury so great review since there is no actual case or controversy.
and so imminent that we cannot wait for these cases.44 (Emphasis supplied)
Final note
The events feared by petitioner are contingent on the passing of the
proposed bill in Congress. The threat of imminent injury is not yet manifest The judiciary is the weakest branch of government. It is true that courts have
since there is no guarantee that the bill will even be passed into law. There is power to declare what law is given a set of facts, but it does not have an
no transcendental interest in this case to justify the relaxation of technical army to enforce its writs. Courts do not have the power of the purse. "Except
rules. for a constitutional provision that requires that the budget of the judiciary
should not go below the appropriation for the previous year, it is beholden to
II the Congress depending on how low the budget is."49

Requisites for the issuance of a writ of mandamus not shown Rule 65, Despite being the third co-equal branch of the government, the judiciary
Section 3 of the 1997 Rules of Civil Procedure provides that: enjoys less than 1%50 of the total budget for the national government.
Specifically, it was a mere 0.82% in 2014,51 0.85% in 2013,52 0.83% in
Rule 65 2012,53 and 0.83% in 2011.54
CERTIORARI, PROHIBITION AND MANDAMUS
Maintenance and Other Operating Expenses or MOOE "pays for sundry
SEC. 3. Petition for mandamus. When any tribunal, corporation, board, matters such as utility payments, paper, gasoline and others."55 The MOOE
officer or person unlawfully neglects the performance of an act which the law granted to the lower courts in 2014 was 1,220,905,000.00.56 While this
specifically enjoins as a duty resulting from an office, trust, or station, or might seem like a large amount, the amount significantly dwindles when
unlawfully excludes another from the use and enjoyment of a right or office to divided among all lower courts in the country. Per the 2014 General
which such other is entitled, and there is no other plain, speedy and Appropriations Act (GAA), the approximate monthly MOOE for all courts are
adequate remedy in the ordinary course of law, the person aggrieved thereby estimated as follows:
Type of Court Number of Estimated Monthly The entire budget for the judiciary, however, does not only come from the
Courts57 MOOE Per Court national government. The Constitution grants fiscal autonomy to the judiciary
to maintain its independence.61 In Bengzon v. Drilon:62
Regional Trial Courts 969 46,408.67
Metropolitan Trial Courts 106 46,071.89 The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
Municipal Trial Courts in Cities 229 46,206.01 constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the funds
Municipal Circuit Trial Courts 468 46,305.69 appropriated for their operations is anathema to fiscal autonomy and violative
Municipal Trial Courts 366 46,423.30 not only of the express mandate of the Constitution but especially as regards
the Supreme Court, of the independence and separation of powers upon
Sharia District Courts 5 40,696.83 which the entire fabric of our constitutional system is based.63
Sharia Circuit Courts 51 45,883.68
Courts, therefore, must also be accountable with their own budget. The
Judiciary Development Fund, used to augment the expenses of the judiciary,
These amounts were arrived at using the following computation: is regularly accounted for by this court on a quarterly basis. The financial
reports are readily available at the Supreme Court website.64 These funds,
however, are still not enough to meet the expenses of lower courts and
Number of Courts guarantee credible compensation for their personnel. The reality is that halls
x MOOE of justice exist because we rely on the generosity of local government units
Total Number of Courts / 12 that provide additional subsidy to our judges.65 If not, the budget for the
construction, repair, and rehabilitation of halls of justice is with the
Department of Justice.66
Number of Courts

As a result, our fiscal autonomy and judicial independence are often


In comparison, the 2014 MOOE allocation for the House of Representatives undermined by low levels of budgetary outlay, the lack of provision for
was 3,386,439,000.0058 or about 282.2 million per month for the maintenance and operating expenses, and the reliance on local government
maintenance and operation of the House of Representatives compound in units and the Department of Justice.
Batasan Hills. Even if this amount was divided equally among the 234
legislative districts, a representatives office space would still have a monthly "Courts are not constitutionally built to do political lobbying. By constitutional
MOOE allocation of approximately 1.2 million, which is significantly higher design, it is a co-equal department to the Congress and the Executive. By
than the average 46,000.00 allocated monthly to each trial court. temperament, our arguments are legal, not political. We are best when we
lay down all our premises in the finding of facts, interpretation of the law and
It was only in 2013 that the budget allocated to the judiciary included an item understanding of precedents. We are not trained .to produce a political
for the construction, rehabilitation, and repair of the halls of justice in the statement or a media release."67
capital outlay. The amount allocated was 1 million.59
"Because of the nature of courts, that is - that it has to decide in favor of one
In 2014, there was no item for the construction, rehabilitation, and repair of party, we may not have a political base. Certainly, we should not even
the halls of justice.60 This allocation would have been used to help fund the consider building a political base. All we have is an abiding faith that we
repair of existing halls of justice and the construction of new halls of justice in should do what we could to ensure that the Rule of Law prevails. It seems
the entire country, including those courts destroyed by Typhoon Yolanda and that we have no champions when it comes to ensuring the material basis for
the 2013 earthquake. fiscal autonomy or judicial independence."68

For this reason, we appreciate petitioner's concern for the judiciary. It is often
only through the vigilance of private citizens that issues relating to the
judiciary can be discussed in the political sphere. Unfortunately, the remedy
he seeks cannot be granted by this court. But his crusade is not a lost cause.
Considering that what he seeks to be struck down is a proposed bill, it would
be better for him to air his concerns by lobbying in Congress. There, he may
discover the representatives and senators who may have a similar
enthusiastic response to truly making the needed investments in the Rule of
Law.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
[G.R. Nos. 146710-15. March 2, 2001] the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity that the petitioner took from Governor Singson P70 million on excise tax on
as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME cigarettes intended for Ilocos Sur. The privilege speech was referred by then
AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., Senate President Franklin Drilon, to the Blue Ribbon Committee (then
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO headed by Senator Aquilino Pimentel) and the Committee on Justice (then
B. FRANCISCO, JR., respondent. headed by Senator Renato Cayetano) for joint investigation.ii[2]

[G.R. No. 146738. March 2, 2001] The House of Representatives did no less. The House Committee on Public
Order and Security, then headed by Representative Roilo Golez, decided to
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, investigate the expos of Governor Singson. On the other hand,
respondent. Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.
DECISION
Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the
PUNO, J.: Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to govern.iii[3]
On the line in the cases at bar is the office of the President. Petitioner Joseph Two days later or on October 13, the Catholic Bishops Conference of the
Ejercito Estrada alleges that he is the President on leave while respondent Philippines joined the cry for the resignation of the petitioner.iv[4] Four days
Gloria Macapagal-Arroyo claims she is the President. The warring later, or on October 17, former President Corazon C. Aquino also demanded
personalities are important enough but more transcendental are the that the petitioner take the supreme self-sacrifice of resignation.v[5] Former
constitutional issues embedded on the parties dispute. While the significant President Fidel Ramos also joined the chorus. Early on, or on October 12,
issues are many, the jugular issue involves the relationship between the ruler respondent Arroyo resigned as Secretary of the Department of Social
and the ruled in a democracy, Philippine style. Welfare and Servicesvi[6] and later asked for petitioners resignation.vii[7]
However, petitioner strenuously held on to his office and refused to resign.
First, we take a view of the panorama of events that precipitated the crisis in
the office of the President. The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They were
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former
President while respondent Gloria Macapagal-Arroyo was elected Vice- Senator Vicente Paterno and Washington Sycip.viii[8] On November 2,
President. Some (10) million Filipinos voted for the petitioner believing he Secretary Mar Roxas II also resigned from the Department of Trade and
would rescue them from lifes adversity. Both petitioner and the respondent Industry.ix[9] On November 3, Senate President Franklin Drilon, and House
were to serve a six-year term commencing on June 30, 1998. Speaker Manuel Villar, together with some 47 representatives defected from
the ruling coalition, Lapian ng Masang Pilipino.x[10]
From the beginning of his term, however, petitioner was plagued by a
plethora of problems that slowly but surely eroded his popularity. His sharp The month of November ended with a big bang. In a tumultuous session on
descent from power started on October 4, 2000. Ilocos Sur Governos, Luis November 13, House Speaker Villar transmitted the Articles of
Chavit Singson, a longtime friend of the petitioner, went on air and accused Impeachmentxi[11] signed by 115 representatives, or more than 1/3 of all the
the petitioner, his family and friends of receiving millions of pesos from members of the House of Representatives to the Senate. This caused
jueteng lords.i[1] political convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker Villar was
The expos immediately ignited reactions of rage. The next day, October 5, unseated by Representative Fuentabella.xii[12] On November 20, the Senate
2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took formally opened the impeachment trial of the petitioner. Twenty-one (21)
the floor and delivered a fiery privilege speech entitled I Accuse. He accused senators took their oath as judges with Supreme Court Chief Justice Hilario
G. Davide, Jr., presiding.xiii[13]
The political temperature rose despite the cold December. On December 7, January 18 saw the high velocity intensification of the call for petitioners
the impeachment trial started.xiv[14] the battle royale was fought by some of resignation. A 10-kilometer line of people holding lighted candles formed a
the marquee names in the legal profession. Standing as prosecutors were human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati
then House Minority Floor Leader Feliciano Belmonte and Representatives City to the EDSA Shrine to symbolize the peoples solidarity in demanding
Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar petitioners resignation. Students and teachers walked out of their classes in
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez Metro Manila to show their concordance. Speakers in the continuing rallies at
and Antonio Nachura. They were assisted by a battery of private prosecutors the EDSA Shrine, all masters of the physics of persuasion, attracted more
led by now Secretary of Justice Hernando Perez and now Solicitor General and more people.xxi[21]
Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. On January 19, the fall from power of the petitioner appeared inevitable. At
Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that
Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines,
Raymund Fortun. The day to day trial was covered by live TV and during its had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election
course enjoyed the highest viewing rating. Its high and low points were the for President where he would not be a candidate. It did not diffuse the
constant conversational piece of the chattering classes. The dramatic point of growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado
the December hearings was the testimony of Clarissa Ocampo, senior vice and General Reyes, together with the chiefs of all the armed services went to
president of Equitable-PCI Bank. She testified that she was one foot away the EDSA Shrine.xxii[22] In the presence of former Presidents Aquino and
from petitioner Estrada when he affixed the signature Jose Velarde on Ramos and hundreds of thousands of cheering demonstrators, General
documents involving a P500 million investment agreement with their bank on Reyes declared that on behalf of your Armed Forces, the 130,000 strong
February 4, 2000.xv[15] members of the Armed Forces, we wish to announce that we are withdrawing
our support to this government.xxiii[23] A little later, PNP Chief, Director
After the testimony of Ocampo, the impeachment trial was adjourned in the General Panfilo Lacson and the major service commanders gave a similar
spirit of Christmas. When it resumed on January 2, 2001, more bombshells stunning announcement.xxiv[24] Some Cabinet secretaries,
were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu undersecretaries, assistant secretaries, and bureau chiefs quickly resigned
who served as petitioners Secretary of Finance took the witness stand. He from their posts.xxv[25] Rallies for the resignation of the petitioner exploded
alleged that the petitioner jointly owned BW Resources Corporation with Mr. in various parts of the country. To stem the tide of rage, petitioner announced
Dante Tan who was facing charges of insider trading.xvi[16] Then came the he was ordering his lawyers to agree to the opening of the highly
fateful day of January 16, when by a vote of 11-10xvii[17] the senator-judges controversial second envelop.xxvi[26] There was no turning back the tide.
ruled against the opening of the second envelop which allegedly contained The tide had become a tsunami.
evidence showing that petitioner held P3.3 billion in a secret bank account
under the name Jose Velarde. The public and private prosecutors walked out January 20 turned to be the day of surrender. At 12:20 a.m., the first round of
in protest of the ruling. In disgust, Senator Pimentel resigned as Senate negotiations for the peaceful and orderly transfer of power started at
President.xviii[18] The ruling made at 10:00 p.m. was met by a spontaneous Malacaangs Mabini Hall, Office of the Executive Secretary. Secretary
outburst of anger that hit the streets of the metropolis. By midnight, Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
thousands had assembled at the EDSA Shrine and speeches full of sulphur Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty.
were delivered against the petitioner and the eleven (11) senators. Macel Fernandez, head of the presidential Management Staff, negotiated for
the petitioner. Respondent Arroyo was represented by now Executive
On January 17, the public prosecutors submitted a letter to Speaker Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and
Fuentebella tendering their collective resignation. They also filed their now Secretary of Justice Hernando Perez.xxvii[27] Outside the palace, there
Manifestation of Withdrawal of Appearance with the impeachment was a brief encounter at Mendiola between pro and anti-Estrada protesters
tribunal.xix[19] Senator Raul Roco quickly moved for the indefinite which resulted in stone-throwing and caused minor injuries. The negotiations
postponement of the impeachment proceedings until the House of consumed all morning until the news broke out that Chief Justice Davide
Representatives shall have resolved the issue of resignation of the public would administer the oath to respondent Arroyo at high noon at the EDSA
prosecutors. Chief Justice Davide granted the motion.xx[20] Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to (Sgd.) JOSEPH EJERCITO ESTRADA
respondent Arroyo as President of the Philippines.xxviii[28] At 2:30 p.m.,
petitioner and his family hurriedly left Malacaang Palace.xxix[29] He issued A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on
the following press statement:xxx[30] January 20.xxxii[32] Another copy was transmitted to Senate President
Pimentel on the same day although it was received only at 9:00 p.m.xxxiii[33]
20 January 2001
On January 22, the Monday after taking her oath, respondent Arroyo
STATEMENT FROM immediately discharged the powers and duties of the Presidency. On the
same day, this Court issued the following Resolution in Administrative Matter
PRESIDENT JOSEPH EJERCITO ESTRADA No. 01-1-05-SC, to wit:

At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-
her oath as President of the Republic of the Philippines. While along with Arroyo to Take her Oath of Office as President of the Republic of the
many other legal minds of our country, I have strong and serious doubts Philippines before the Chief Justice Acting on the urgent request of Vice-
about the legality and constitutionality of her proclamation as President, I do President Gloria Macapagal-Arroyo to be sworn in as President of the
not wish to be a factor that will prevent the restoration of unity and order in Republic of the Philippines, addressed to the Chief Justice and confirmed by
our civil society. a letter to the Court, dated January 20, 2001, which request was treated as
an administrative matter, the court Resolved unanimously to confirm the
authority given by the twelve (12) members of the Court then present to the
It is for this reason that I now leave Malacaang Palace, the seat of the
Chief Justice on January 20, 2001 to administer the oath of office to Vice
presidency of this country, for the sake of peace and in order to begin the
President Gloria Macapagal-Arroyo as President of the Philippines, at noon
healing process of our nation. I leave the Palace of our people with gratitude
of January 20, 2001.
for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our
country. This resolution is without prejudice to the disposition of any justiciable case
that maybe filed by a proper party.
I call on all my supporters and followers to join me in the promotion of a
constructive national spirit of reconciliation and solidarity. Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.xxxiv[34] Recognition of respondent
Arroyos government by foreign governments swiftly followed. On January 23,
May the Almighty bless our country and beloved people.
in a reception or vin d honneur at Malacaang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
MABUHAY! foreign diplomats recognized the government of respondent Arroyo.xxxv[35]
US President George W. Bush gave the respondent a telephone call from the
(Sgd.) JOSEPH EJERCITO ESTRADA White House conveying US recognition of her government.xxxvi[36]

It also appears that on the same day, January 20, 2001, he signed the On January 24, Representative Feliciano Belmonte was elected new
following letter:xxxi[31] Speaker of the House of Representatives.xxxvii[37] The House then passed
Resolution No. 175 expressing the full support of the House of
Sir: Representatives to the administration of Her Excellency Gloria Macapagal-
Arroyo, President of the Philippines.xxxviii[38] It also approved Resolution
By virtue of the provisions of Section 11, Article VII of the Constitution, I am No. 176 expressing the support of the House of Representatives to the
hereby transmitting this declaration that I am unable to exercise the powers assumption into office by Vice President Gloria Macapagal-Arroyo as
and duties of my office. By operation of law and the Constitution, the Vice- President of the Republic of the Philippines, extending its congratulations
President shall be the Acting President. and expressing its support for her administration as a partner in the
attainment of the nations goals under the Constitution.xxxix[39]
On January 26, the respondent signed into law the Solid Waste Management plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct;
Act.xl[40] A few days later, she also signed into law the Political Advertising (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November
Ban and Fair Election Practices Act.xli[41] 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery,
Jr., as her Vice President.xlii[42] the next day, February 7, the Senate violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No.
adopted Resolution No. 82 confirming the nomination of Senator Guingona, 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
Jr.xliii[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John plunder, graft and corruption.
Osmea voted yes with reservations, citing as reason therefore the pending
challenge on the legitimacy of respondent Arroyos presidency before the A special panel of investigators was forthwith created by the respondent
Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were Ombudsman to investigate the charges against the petitioner. It is chaired by
absent.xliv[44] The House of Representatives also approved Senator Overall Deputy Ombudsman Margarito P. Gervasio with the following as
Guingonas nomination in Resolution No. 178.xlv[45] Senator Guingona took members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
his oath as Vice President two (2) days later.xlvi[46] Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel
issued an Order directing the petitioner to file his counter-affidavit and the
On February 7, the Senate passed Resolution No. 83 declaring that the affidavits of his witnesses as well as other supporting documents in answer
impeachment court is functus officio and has been terminated.xlvii[47] to the aforementioned complaints against him.
Senator Miriam Defensor-Santiago stated for the record that she voted
against the closure of the impeachment court on the grounds that the Senate Thus, the stage for the cases at bar was set. On February 5, petitioner filed
had failed to decide on the impeachment case and that the resolution left with this Court GR No. 146710-15, a petition for prohibition with a prayer for
open the question of whether Estrada was still qualified to run for another a writ of preliminary injunction. It sought to enjoin the respondent
elective post.xlviii[48] Ombudsman from conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint
Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public that may be filed in his office, until after the term of petitioner as President is
acceptance rating jacked up from 16% on January 20, 2001 to 38% on over and only if legally warranted. Thru another counsel, petitioner, on
January 26, 2001.xlix[49] In another survey conducted by the ABS- February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment
CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos confirming petitioner to be the lawful and incumbent President of the
nationwide accepted President Arroyo as replacement of petitioner Estrada. Republic of the Philippines temporarily unable to discharge the duties of his
The survey also revealed that President Arroyo is accepted by 60% in Metro office, and declaring respondent to have taken her oath as and to be holding
Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and the Office of the President, only in an acting capacity pursuant to the
55% in Mindanao. Her trust rating increased to 52%. Her presidency is provisions of the Constitution. Acting on GR Nos. 146710-15, the Court, on
accepted by majorities in all social classes: the same day, February 6, required the respondents to comment thereon
within a non-extendible period expiring on 12 February 2001. On February
13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No.
58% in the ABC or middle-to-upper classes, 64% in the D or mass, and
54% among the Es or very poor class.l[50] 146738 and the filing of the respondents comments on or before 8:00 a.m. of
February 15.
After his fall from the pedestal of power, the petitioners legal problems
On February 15, the consolidated cases were orally argued in a four-hour
appeared in clusters. Several cases previously filed against him in the Office
hearing. Before the hearing, Chief Justice Davide, Jr.,li[51] and Associate
of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-
1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft Justice Artemio Panganibanlii[52] recused themselves on motion of
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against petitioners counsel, former Senator Rene A. Saguisag. They debunked the
charge of counsel Saguisag that they have compromised themselves by
Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and
indicating that they have thrown their weight on one side but nonetheless
corruption, bribery, perjury, serious misconduct, violation of the Code of
inhibited themselves. Thereafter, the parties were given the short period of
Conduct for government Employees, etc; (3) OMB Case No. 0-00-1755 filed
five (5) days to file their memoranda and two (2) days to submit their
by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for
simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of IV
resolution and press statement for Gag Order on respondent Ombudsman
filed by counsel for petitioner in G.R. No. 146738, the Court resolved: Whether the prosecution of petitioner Estrada should be enjoined on the
ground of prejudicial publicity.
(1) to inform the parties that the Court did not issue a resolution on January
20, 2001 declaring the office of the President vacant and that neither did the We shall discuss the issues in seriatim.
Chief Justice issue a press statement justifying the alleged resolution;
I
(2) to order the parties and especially their counsel who are officers of the
Court under pain of being cited for contempt to refrain from making any Whether or not the cases at bar involve a political question
comment or discussing in public the merits of the cases at bar while they are
still pending decision by the Court, and
Private respondentsliv[54] raise the threshold issue that the cases at bar
pose a political question, and hence, are beyond the jurisdiction of this Court
(3) to issue a 30-day status quo order effective immediately enjoining the
to decide. They contend that shorn of its embroideries, the cases at bar
respondent Ombudsman from resolving or deciding the criminal cases
assail the legitimacy of the Arroyo administration. They stress that
pending investigation in his office against petitioner Joseph E. Estrada and
respondent Arroyo ascended the presidency through people power; that she
subject of the cases at bar, it appearing from news reports that the has already taken her oath as the 14th President of the Republic; that she
respondent Ombudsman may immediately resolve the cases against has exercised the powers of the presidency and that she has been
petitioner Joseph E. Estrada seven (7) days after the hearing held on
recognized by foreign governments. They submit that these realities on
February 15, 2001, which action will make the cases at bar moot and
ground constitute the political thicket which the Court cannot enter.
academic.liii[53]
We reject private respondents submission. To be sure, courts here and
The parties filed their replies on February 24. On this date, the cases at bar abroad, have tried to lift the shroud on political question but its exact latitude
were deemed submitted for decision.
still splits the best of legal minds. Developed by the courts in the 20th century,
the political question doctrine which rests on the principle of separation of
The bedrock issues for resolution of this Court are: powers and on prudential considerations, continue to be refined in the mills
constitutional law.lv[55] In the United States, the most authoritative
I guidelines to determine whether a question is political were spelled out by
Mr. Justice Brennan in the 1962 case of Baker v. Carr,lvi[56] viz:
Whether the petitions present a justiciable controversy.
x x x Prominent on the surface on any case held to involve a political
II 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
Assuming that the petitions present a justiciable controversy, whether
without an initial policy determination of a kind clearly for nonjudicial
petitioner Estrada is a President on leave while respondent Arroyo is an
Acting President. discretions; 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
III decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question. Unless one of these
Whether conviction in the impeachment proceedings is a condition precedent formulations is inextricable from the case at bar, there should be no dismissal
for the criminal prosecution of petitioner Estrada. In the negative and on the for non justiciability on the ground of a political questions presence. The
assumption that petitioner is still President, whether he is immune from doctrine of which we treat is one of political questions, not of political cases.
criminal prosecution.
In the Philippine setting, this Court has been continuously confronted with Constitution. Indeed, she has stressed that she is discharging the powers of
cases calling for a firmer delineation of the inner and outer perimeters of a the presidency under the authority of the 1987 Constitution.
political question.lvii[57] Our leading case is Tanada v. Cuenco,lviii[58]
where this Court, through former Chief Justice Roberto Concepcion, held that In fine, the legal distinction between EDSA People Power I and EDSA
political questions refer to those questions which, under the Constitution, are People Power II is clear. EDSA I involves the exercise of the people power
to be decided by the people in their sovereign capacity, or in regard to of revolution which overthrew the whole government. EDSA II is an
which full discretionary authority has been delegated to the legislative or exercise of people power of freedom of speech and freedom of
executive branch of the government. It is concerned with issues dependent assembly to petition the government for redress of grievances which
upon the wisdom, not legality of a particular measure. To a great degree, only affected the office of the President. EDSA I is extra constitutional
the 1987 Constitution has narrowed the reach of the political question and the legitimacy of the new government that resulted from it cannot be the
doctrine when it expanded the power of judicial review of this court not only subject of judicial review, but EDSA II is intra constitutional and the
to settle actual controversies involving rights which are legally demandable resignation of the sitting President that it caused and the succession of the
and enforceable but also to determine whether or not there has been a Vice President as President are subject to judicial review. EDSA I presented
grave abuse of discretion amounting to lack or excess of jurisdiction on the political question; EDSA II involves legal questions. A brief discourse on
part of any branch or instrumentality of government.lix[59] Heretofore, the freedom of speech and of the freedom of assembly to petition the
judiciary has focused on the thou shalt nots of the Constitution directed government for redress of grievance which are the cutting edge of EDSA
against the exercise of its jurisdiction.lx[60] With the new provision, however, People Power II is not inappropriate.
courts are given a greater prerogative to determine what it can do to prevent
grave abuse of discretion amounting to lack or excess of jurisdiction on the
Freedom of speech and the right of assembly are treasured by Filipinos.
part of any branch or instrumentality of government. Clearly, the new
Denial of these rights was one of the reasons of our 1898 revolution against
provision did not just grant the Court power of doing nothing. In sync Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
and symmetry with this intent are other provisions of the 1987 Constitution
recognition of freedom of the press of the Filipinos and included it as among
trimming the so called political thicket. Prominent of these provisions is the reforms sine quibus non.lxv[65] The Malolos Constitution, which is the
section 18 of Article VII which empowers this Court in limpid language to x x
work of the revolutionary Congress in 1898, provided in its Bill of Rights that
x review, in an appropriate proceeding filed by any citizen, the sufficiency of Filipinos shall not be deprived (1) of the right to freely express his ideas or
the factual basis of the proclamation of martial law or the suspension of the opinions, orally or in writing, through the use of the press or other similar
privilege of the writ (of habeas corpus) or the extension thereof x x x.
means; (2) of the right of association for purposes of human life and which
are not contrary to public means; and (3) of the right to send petitions to the
Respondents rely on the case of Lawyers League for a Better Philippines authorities, individually or collectively. These fundamental rights were
and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.lxi[61] and preserved when the United States acquired jurisdiction over the
related caseslxii[62] to support their thesis that since the cases at bar involve Philippines. In the instruction to the Second Philippine Commission of April
the legitimacy of the government of respondent Arroyo, ergo, they present a 7, 1900 issued by President McKinley, it is specifically provided that no law
political question. A more cerebral reading of the cited cases will show that shall be passed abridging the freedom of speech or of the press or of the
they are inapplicable. In the cited cases, we held that the government of rights of the people to peaceably assemble and petition the Government for
former President Aquino was the result of a successful revolution by the redress of grievances. The guaranty was carried over in the Philippine Bill,
sovereign people, albeit a peaceful one. No less than the Freedom the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress
Constitutionlxiii[63] declared that the Aquino government was installed of August 29, 1966.lxvi[66]
through a direct exercise of the power of the Filipino people in defiance of
the provisions of the 1973 Constitution, as amended. It is familiar
Thence on, the guaranty was set in stone in our 1935 Constitution,lxvii[67]
learning that the legitimacy of a government sired by a successful revolution and the 1973lxviii[68] Constitution. These rights are now safely ensconced
by people power is beyond judicial scrutiny for that government automatically in section 4, Article III of the 1987 Constitution, viz:
orbits out of the constitutional loop. In checkered contrast, the government
of respondent Arroyo is not revolutionary in character. The oath that she
took at the EDSA Shrine is the oath under the 1987 Constitution.lxiv[64] In Sec. 4. No law shall be passed abridging the freedom of speech, of
her oath, she categorically swore to preserve and defend the 1987 expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
The indispensability of the peoples freedom of speech and of assembly to The issue brings under the microscope of the meaning of section 8, Article
democracy is now self-evident. The reasons are well put by Emerson: first, VII of the Constitution which provides:
freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and Sec. 8. In case of death, permanent disability, removal from office or
discovering truth; third, it is essential to provide for participation in decision- resignation of the President, the Vice President shall become the President
making by all members of society; and fourth, it is a method of achieving a to serve the unexpired term. In case of death, permanent disability, removal
more adaptable and hence, a more stable community of maintaining the from office, or resignation of both the President and Vice President, the
precarious balance between healthy cleavage and necessary President of the Senate or, in case of his inability, the Speaker of the House
consensus.lxix[69] In this sense, freedom of speech and of assembly of Representatives, shall then acts as President until President or Vice
provides a framework in which the conflict necessary to the progress of President shall have been elected and qualified.
a society can take place without destroying the society.lxx[70] In Hague
v. Committee for Industrial Organization,lxxi[71] this function of free
x x x.
speech and assembly was echoed in the amicus curiae brief filed by the Bill
of Rights Committee of the American Bar Association which emphasized that
the basis of the right of assembly is the substitution of the expression of The issue then is whether the petitioner resigned as President or should be
opinion and belief by talk rather than force; and this means talk for all and considered resigned as of January 20, 2001 when respondent took her oath
by all.lxxii[72] In the relatively recent case of Subayco v. as the 14th President of the Republic. Resignation is not a high level legal
Sandiganbayan,lxxiii[73] this Court similarly stressed that "... it should be abstraction. It is a factual question and its elements are beyond quibble:
clear even to those with intellectual deficits that when the sovereign people there must be an intent to resign and the intent must be coupled by
assemble to petition for redress of grievances, all should listen. For in a acts of relinquishment.lxxviii[78] The validity of a resignation is not
democracy, it is the people who count; those who are deaf to their governed by any formal requirement as to form. It can be oral. It can be
grievances are ciphers. written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.
Needless to state, the cases at bar pose legal and not political questions.
The principal issues for resolution require the proper interpretation of certain In the cases at bar, the facts shows that petitioner did not write any formal
provisions in the 1987 Constitution, notably section 1 of Article II,lxxiv[74] and letter of resignation before he evacuated Malacaang Palace in the Afternoon
section 8lxxv[75]of Article VII, and the allocation of governmental powers of January 20, 2001 after the oath-taking of respondent Arroyo.
under section 11lxxvi[76] of Article VII. The issues likewise call for a ruling on Consequently, whether or not petitioner resigned has to be determined from
the scope of presidential immunity from suit. They also involve the correct his acts and omissions before, during and after January 20, 2001 or by the
calibration of the right of petitioner against prejudicial publicity. As early as totality of prior, contemporaneous and posterior facts and
the 1803 case of Marbury v. Madison,lxxvii[77] the doctrine has been laid circumstantial evidence bearing a material relevance on the issue.
down that it is emphatically the province and duty of the judicial
department to say what the law is . . . Thus, respondents invocation of the Using this totality test, we hold that petitioner resigned as President.
doctrine of political is but a foray in the dark.
To appreciate the public pressure that led to the resignation of the petitioner,
II it is important to follow the succession of events after the expos of Governor
Singson. The Senate Blue Ribbon Committee investigated. The more
Whether or not the petitioner resigned as President detailed revelations of petitioners alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed
in the House of Representatives which initially was given a near cipher
We now slide to the second issue. None of the parties considered this issue chance of succeeding snowballed. In express speed, it gained the signatures
as posing a political question. Indeed, it involves a legal question whose
of 115 representatives or more than 1/3 of the House of Representatives.
factual ingredient is determinable from the records of the case and by resort
Soon, petitioners powerful political allies began deserting him. Respondent
to judicial notice. Petitioner denies he resigned as President or that he
Arroyo quit as Secretary of Social Welfare. Senate President Drilon and
suffers from a permanent disability. Hence, he submits that the office of the
Former Speaker Villar defected with 47 representatives in tow. Then, his
President was not vacant when respondent Arroyo took her oath as
president.
respected senior economic advisers resigned together with his Secretary of The pressure continued piling up. By 11:00 p.m., former President Ramos
Trade and Industry. called up Secretary Angara and requested, Ed, magtulungan tayo para
magkaroon tayo ng (lets cooperate to ensure a) peaceful and orderly
As the political isolation of the petitioner worsened, the peoples call for his transfer of power.lxxxvi[86] There was no defiance to the request. Secretary
resignation intensified. The call reached a new crescendo when the eleven Angara readily agreed. Again, we note that at this stage, the problem was
(11) members of the impeachment tribunal refused to open the second already about a peaceful and orderly transfer of power. The resignation
envelope. It sent the people to paroxysms of outrage. Before the night of of the petitioner was implied.
January 16 was over, the EDSA Shrine was swarming with people crying for
redress of their grievance. Their number grew exponentially. Rallies and The first negotiation for a peaceful and orderly transfer of power
demonstration quickly spread to the countryside like a brush fire. immediately started at 12:20 a.m. of January 20, that fateful Saturday. The
negotiation was limited to three (3) points: (1) the transition period of five
As events approached January 20, we can have an authoritative window on days after the petitioners resignation; (2) the guarantee of the safety of the
the state of mind of the petitioner. The window is provided in the Final Days petitioner and his family, and (3) the agreement to open the second envelope
of Joseph Ejercito Estrada, the diary of Executive Secretary Angara to vindicate the name of the petitioner.lxxxvii[87] Again, we note that the
serialized in the Philippine Daily Inquirer.lxxix[79] The Angara Diary reveals resignation of petitioner was not a disputed point. The petitioner cannot
that in morning of January 19, petitioners loyal advisers were worried about feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
the swelling of the crowd at EDSA, hence, they decided to crate an ad hoc he briefed the petitioner on the three points and the following entry in the
committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner Angara Diary shows the reaction of the petitioner, viz:
pulled Secretary Angara into his small office at the presidential residence and
exclaimed: Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is xxx
serious. Angelo has defected.)lxxx[80] An hour later or at 2:30, p.m., the
petitioner decided to call for a snap presidential election and stressed he I explain what happened during the first round of negotiations. The President
would not be a candidate. The proposal for a snap election for immediately stresses that he just wants the five-day period promised by
president in May where he would not be a candidate is an indicium that Reyes, as well as to open the second envelope to clear his name.
petitioner had intended to give up the presidency even at that time. At
3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding If the envelope is opened, on Monday, he says, he will leave by Monday.
the resignation of the petitioner and dramatically announced the AFPs
withdrawal of support from the petitioner and their pledge of support to
respondent Arroyo. The seismic shift of support left petitioner weak as a The President says. Pagod na pagod na ako. Ayoko na masyado nang
president. According to Secretary Angara, he asked Senator Pimentel to masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very
advise petitioner to consider the option of dignified exit or tired. I dont want any more of this its too painful. Im tired of the red
resignation.lxxxi[81] Petitioner did nor disagree but listened tape, the bureaucracy, the intrigue.)
intently.lxxxii[82] The sky was falling fast on the petitioner. At 9:30 p.m.,
Senator Pimentel repeated to the petitioner the urgency of making a graceful I just want to clear my name, then I will go.lxxxviii[88]
and dignified exit. He gave the proposal a sweetener by saying that petitioner
would allowed to go abroad with enough funds to support him and his Again, this is high grade evidence that the petitioner has resigned. The
family.lxxxiii[83] Significantly, the petitioner expressed no objection to intent to resign is clear when he said x x x Ayoko na masyado nang masakit.
the suggestion for a graceful and dignified exit but said he would never Ayoko na are words of resignation.
leave the country.lxxxiv[84] At 10:00 p.m., petitioner revealed to Secretary
Angara, Ed, Angie (Reyes) guaranteed that I would have five days to a week The second round of negotiation resumed at 7:30 a.m. According to the
in the palace.lxxxv[85] This is proof that petitioner had reconciled himself Angara Diary, the following happened:
to the reality that he had to resign. His mind was already concerned
with the five-day grace period he could stay in the palace. It was a
Oppositions deal
matter of time.
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals persecution or retaliation from government and the private sector throughout
spokesperson) Rene Corona. For this round, I am accompanied by Dondon their natural lifetimes.
Bagatsing and Macel.
This commitment shall be guaranteed by the Armed Forces of the Philippines
Rene pulls out a document titled Negotiating Points. It reads: (AFP) through the Chief of Staff, as approved by the national military and
police authorities Vice President (Macapagal).
1. The President shall sign a resignation document within the day, 20
January 2001, that will be effective on Wednesday, 24 January 2001, on 3. Both parties shall endeavor to ensure that the Senate siting as an
which day the Vice President will assume the Presidency of the Republic of impeachment court will authorize the opening of the second envelope in the
the Philippines. impeachment trial as proof that the subject savings account does not belong
to President Estrada.
2. Beginning today, 20 January 2001, the transition process for the
assumption of the new administration shall commence, and persons 4. During the five-day transition period between 20 January 2001 and 24
designated by the Vice president to various positions and offices of the January 2001 (the Transition Period), the incoming Cabinet members shall
government shall start their orientation activities in coordination with the receive an appropriate briefing from the outgoing Cabinet officials as part of
incumbent officials concerned. the orientation program.

3. The Armed Forces of the Philippines and the Philippine National Police During the Transition Period, the AFP and the Philippine National Police
shall function under the Vice President as national military and police (PNP) shall function under Vice President (Macapagal) as national military
effective immediately. and police authorities.

4. The Armed Forces of the Philippines, through its Chief of Staff, shall Both parties hereto agree that the AFP chief of staff and PNP director
guarantee the security of the president and his family as approved by the general shall obtain all the necessary signatures as affixed to this agreement
national military and police authority (Vice President). and insure faithful implementation and observance thereof.

5. It is to be noted that the Senate will open the second envelope in Vice President Gloria Macapagal-Arroyo shall issue a public statement in the
connection with the alleged savings account of the President in the Equitable form and tenor provided for in Annex A heretofore attached to this
PCI Bank in accordance with the rules of the Senate, pursuant to the request agreement.lxxxix[89]
to the Senate President.
The second round of negotiation cements the reading that the
Our deal petitioner has resigned. It will be noted that during this second round of
negotiation, the resignation of the petitioner was again treated as a
We bring out, too, our discussion draft which reads: given fact. The only unsettled points at that time were the measures to
be undertaken by the parties during and after the transition period.
The undersigned parties, for and in behalf of their respective principals,
agree and undertake as follows: According to Secretary Angara, the draft agreement which was premised on
the resignation of the petitioner was further refined. It was then signed by
their side and he was ready to fax it to General Reyes and Senator Pimentel
1. A transition will occur and take place on Wednesday, 24 January 2001, at
to await the signature of the United Opposition. However, the signing by
which time President Joseph Ejercito Estrada will turn over the presidency to
the party of the respondent Arroyo was aborted by her oath-taking. The
Vice President Gloria Macapagal-Arroyo.
Angara Diary narrates the fateful events, viz:xc[90]
2. In return, President Estrada and his families are guaranteed security and
xxx
safety of their person and property throughout their natural lifetimes.
Likewise, President Estrada and his families are guaranteed freedom from
11:00 a.m. Between General Reyes and myself, there is a firm Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt
agreement on the five points to effect a peaceful transition. I can hear you wait? What about the agreement)? I asked.
the general clearing all these points with a group he is with. I hear
voices in the background. Reyes answered: Wala na, sir (Its over, sir).

Agreement I asked him: Di yung transition period, moot and academic na?

The agreement starts: 1. The President shall resign today, 20 January 2001, And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting
which resignation shall be effective on 24 January 2001, on which day the that part).
Vice President will assume the presidency of the Republic of the Philippines.
Contrary to subsequent reports, I do not react and say that there was a
xxx double cross.

The rest of the agreement follows: But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic. Within
2. The transition process for the assumption of the new administration shall moments, Macel erases the first provision and faxes the documents, which
commence on 20 January 2001, wherein persons designated by the Vice have been signed by myself, Dondon and Macel to Nene Pimentel and
President to various government positions shall start orientation activities General Reyes.
with incumbent officials.
I direct Demaree Ravel to rush the original document to General Reyes for
3. The Armed Forces of the Philippines through its Chief of Staff, shall the signatures of the other side, as it is important that the provision on
guarantee the safety and security of the President and his families security, at least, should be respected.
throughout their natural lifetimes as approved by the national military and
police authority Vice President. I then advise the President that the Supreme Court has ruled that Chief
Justice Davide will administer the oath to Gloria at 12 noon.
4. The AFP and the Philippine National Police (PNP) shall function under the
Vice President as national military and police authorities. The president is too stunned for words.

5. Both parties request the impeachment court to open the second envelope Final meal
in the impeachment trial, the contents of which shall be offered as proof that
the subject savings account does not belong to the President.
12 noon Gloria takes her oath as President of the Republic of the Philippines.

The Vice President shall issue a public statement in the form and tenor
12:20 p.m. The PSG distributes firearms to some people inside the
provided for in Annex B heretofore attached to this agreement. compound.

xxx
The President is having his final meal at the Presidential Residence with the
few friends and Cabinet members who have gathered.
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our
agreement, signed by our side and awaiting the signature of the United By this time, demonstrators have already broken down the first line of
Opposition.
defense at Mendiola. Only the PSG is there to protect the Palace, since the
police and military have already withdrawn their support for the President.
And then it happens. General Reyes calls me to say that the Supreme Court
has decided that Gloria Macapagal-Arroyo is President and will be sworn in
at 12 noon.
1 p.m. The Presidents personal staff is rushing to pack as many of the and solidarity could not be attained if he did not give up the presidency.
Estrada familys personal possessions as they can. The press release was petitioners valedictory, his final act of farewell. His
presidency is now in the past tense.
During lunch, Ronie Puno mentions that the President needs to release a
final statement before leaving Malacaang. It is, however, urged that the petitioner did not resign but only took a
temporary leave of absence due to his inability to govern. In support of
The statement reads: At twelve oclock noon today, Vice President Gloria this thesis, the letter dated January 20, 2001 of the petitioner sent to Senate
Macapagal-Arroyo took her oath as President of the Republic of the President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
Philippines. While along with many other legal minds of our country, I have said letter, viz:
strong and serious doubts about the legality and constitutionality of her
proclamation as president, I do not wish to be a factor that will prevent the Sir
restoration of unity and order in our civil society.
By virtue of the provisions of Section II, Article VII of the Constitution, I am
It is for this reason that I now leave Malacaang Palace, the seat of the hereby transmitting this declaration that I am unable to exercise the powers
presidency of this country, for the sake of peace and in order to begin the and duties of my office. By operation of law and the Constitution, the Vice
healing process of our nation. I leave the Palace of our people with gratitude President shall be the Acting President.
for the opportunities given to me for service to our people. I will not shrik from
any future challenges that may come ahead in the same service of our (Sgd.) Joseph Ejercito Estrada
country.
To say the least, the above letter is wrapped in mystery.xci[91] The
I call on all my supporters and followers to join me in the promotion of a pleadings filed by the petitioner in the cases at bar did not discuss, nay even
constructive national spirit of reconciliation and solidarity. intimate, the circumstances that led to its preparation. Neither did the counsel
of the petitioner reveal to the Court these circumstances during the oral
May the Almighty bless our country and our beloved people. argument. It strikes the Court as strange that the letter, despite its legal
value, was never referred to by the petitioner during the week-long
MABUHAY! crisis. To be sure, there was not the slightest hint of its existence when he
issued his final press release. It was all too easy for him to tell the Filipino
people in his press release that he was temporarily unable to govern and that
It was curtain time for the petitioner.
he was leaving the reins of government to respondent Arroyo for the time
being. Under any circumstance, however, the mysterious letter cannot
In sum, we hold that the resignation of the petitioner cannot be doubted. It negate the resignation of the petitioner. If it was prepared before the
was confirmed by his leaving Malacaang. In the press release containing his press release of the petitioner clearly showing his resignation from the
final statement, (1) he acknowledged the oath-taking of the respondent presidency, then the resignation must prevail as a later act. If, however, it
as President of the Republic albeit with the reservation about its legality; (2) was prepared after the press release, still, it commands scant legal
he emphasized he was leaving the Palace, the seat of the presidency, for the significance. Petitioners resignation from the presidency cannot be the
sake of peace and in order to begin the healing process of our nation. He did subject of a changing caprice nor of a whimsical will especially if the
not say he was leaving the Palace due to any kind of inability and that resignation is the result of his repudiation by the people. There is
he was going to re-assume the presidency as soon as the disability another reason why this Court cannot give any legal significance to
disappears; (3) he expressed his gratitude to the people for the opportunity petitioners letter and this shall be discussed in issue number III of this
to serve them. Without doubt, he was referring to the past opportunity given Decision.
him to serve the people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead in the same service of our
After petitioner contended that as a matter of fact he did not resign, he
country. Petitioners reference is to a future challenge after occupying the
office of the president which he has given up; and (5) he called on his also argues that he could not resign as a matter of law. He relies on
supporters to join him in the promotion of a constructive national spirit of section 12 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which allegedly prohibits his resignation, viz:
reconciliation and solidarity. Certainly, the national spirit of reconciliation
Sec. 12. No public officer shall be allowed to resign or retire pending an resignation or retirement will not cause the dismissal of the criminal or
investigation, criminal or administrative, or pending a prosecution against administrative proceedings against him. He cannot use his resignation or
him, for any offense under this Act or under the provisions of the Revised retirement to avoid prosecution.
Penal Code on bribery.
There is another reason why petitioners contention should be rejected. In the
A reading of the legislative history of RA No. 3019 will hardly provide any cases at bar, the records show that when petitioner resigned on January 20,
comfort to the petitioner. RA No. 3019 originated from Senate Bill No. 293. 2001, the cases filed against him before the Ombudsman were OMB Case
The original draft of the bill, when it was submitted to the Senate, did not Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
contain a provision similar to section 12 of the law as it now stands. these cases have been filed, the respondent Ombudsman refrained from
However, in his sponsorship speech, Senator Arturo Tolentino, the author of conducting the preliminary investigation of the petitioner for the reason that
the bill, reserved to propose during the period of amendments the inclusion as the sitting President then, petitioner was immune from suit. Technically,
of a provision to the effect that no public official who is under prosecution for the said cases cannot be considered as pending for the Ombudsman lacked
any act of graft or corruption, or is under administrative investigation, shall be jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
allowed to voluntarily resign or retire.xcii[92] During the period of invoked by the petitioner for it contemplates of cases whose investigation or
amendments, the following provision was inserted as section 15: prosecution do not suffer from any insuperable legal obstacle like the
immunity from suit of a sitting President.
Sec. 15. Termination of office No public official shall be allowed to resign or
retire pending an investigation, criminal or administrative, or pending a Petitioner contends that the impeachment proceeding is an administrative
prosecution against him, for any offense under the Act or under the investigation that, under section 12 of RA 3019, bars him from resigning. We
provisions of the Revised Penal Code on bribery. hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative
The separation or cessation of a public official from office shall not be a bar proceeding, it can not be considered pending at the time petitioner resigned
to his prosecution under this Act for an offense committed during his because the process already broke down when a majority of the senator-
incumbency.xciii[93] judges voted against the opening of the second envelope, the public and
private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were
The bill was vetoed by then President Carlos P. Garcia who questioned the
postponed indefinitely. There was, in effect, no impeachment case pending
legality of the second paragraph of the provision and insisted that the
against petitioner when he resigned.
Presidents immunity should extend even after his tenure.

III
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the new
bill, but the deliberations on this particular provision mainly focused on the Whether or not the petitioner is only temporarily unable to act as President.
immunity of the President which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the We shall now tackle the contention of the petitioner that he is merely
resignation or retirement of a public official with pending criminal and temporarily unable to perform the powers and duties of the presidency, and
administrative cases against him. Be that as it may, the intent of the law hence is a President on leave. As aforestated, the inability claim is contained
ought to be obvious. It is to prevent the act of resignation or retirement in the January 20, 2001 letter of petitioner sent on the same day to Senate
from being used by a public official as a protective shield to stop the President Pimentel and Speaker Fuentebella.
investigation of a pending criminal or administrative case against him
and to prevent his prosecution under the Anti-Graft Law or prosecution Petitioner postulates that respondent Arroyo as Vice President has no power
for bribery under the Revised Penal Code. To be sure, no person can be to adjudge the inability of the petitioner to discharge the powers and duties of
compelled to render service for that would be a violation of his constitutional the presidency. His significant submittal is that Congress has the ultimate
right.xciv[94] A public official has the right not to serve if he really wants to authority under the Constitution to determine whether the President is
retire or resign. Nevertheless, if at the time he resigns or retires, a public incapable of performing his functions in the manner provided for in section 11
official is facing administrative or criminal investigation or prosecution, such of Article VII.xcv[95] This contention is the centerpiece of petitioners
stance that he is a President on leave and respondent Arroyo is only an On the same date, the House of the Representatives passed House
Acting President. Resolution No. 176xcvii[97]which states:

An examination of section 11, Article VII is in order. It provides: RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY
SEC. 11. Whenever the President transmit to the President of the Senate VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
and the Speaker of the House of Representatives his written declaration that PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
he is unable to discharge the powers and duties of his office, and until he EXTENDING ITS CONGRATULATIONS AND EXPRESSING
transmits to them a written declaration to the contrary, such powers and ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER
duties shall be discharged by the Vice-President as Acting President. IN THE ATTAINMENT OF THE NATIONS GOALS UNDER THE
CONSTITUTION
Whenever a majority of all the Members of the Cabinet transmit to the
President of the Senate and to the Speaker of the House of Representatives WHEREAS, as a consequence of the peoples loss of confidence on the
their written declaration that the President is unable to discharge the powers ability of former President Joseph Ejercito Estrada to effectively govern, the
and duties of his office, the Vice-President shall immediately assume the Armed Forces of the Philippines, the Philippine National Police and majority
powers and duties of the office as Acting President. of his cabinet had withdrawn support from him;

Thereafter, when the President transmits to the President of the Senate and WHEREAS, upon authority of an en banc resolution of the Supreme Court,
to the Speaker of the House of Representatives his written declaration that Vice President Gloria Macapagal-Arroyo was sworn in as President of the
no inability exists, he shall reassume the powers and duties of his office. Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
Meanwhile, should a majority of all the Members of the Cabinet transmit
within five days to the President of the Senate and to the Speaker of the WHEREAS, immediately thereafter, members of the international community
House of Representatives their written declaration that the President is had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo
unable to discharge the powers and duties of his office, the Congress shall as President of the Republic of the Philippines;
decide the issue. For that purpose, the Congress shall convene, if it is not in
session, within forty-eight hours, in accordance with its rules and without WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
need of call. espoused a policy of national healing and reconciliation with justice for the
purpose of national unity and development;
If the Congress, within ten days after receipt of the last written declaration,
or, if not in session within twelve days after it is required to assemble, WHEREAS, it is axiomatic that the obligations of the government cannot be
determines by a two-thirds vote of both Houses, voting separately, that the achieved if it is divided, thus by reason of the constitutional duty of the House
President is unable to discharge the powers and duties of his office, the Vice- of Representatives as an institution and that of the individual members
President shall act as President; otherwise, the President shall continue thereof of fealty to the supreme will of the people, the House of
exercising the powers and duties of his office." Representatives must ensure to the people a stable, continuing government
and therefore must remove all obstacles to the attainment thereof;
That is the law. Now the operative facts:
WHEREAS, it is a concomitant duty of the House of Representatives to exert
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to all efforts to unify the nation, to eliminate fractious tension, to heal social and
the Senate President and Speaker of the House; political wounds, and to be an instrument of national reconciliation and
solidarity as it is a direct representative of the various segments of the whole
(2) Unaware of the letter, respondent Arroyo took her oath of office as nation;
President on January 20, 2001 at about 12:30 p.m.;
WHEREAS, without surrendering its independence, it is vital for the
(3) Despite receipt of the letter, the House of Representative passed on attainment of all the foregoing, for the House of Representatives to extend its
January 24, 2001 House Resolution No. 175;xcvi[96] support and collaboration to the administration of Her Excellency, President
Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed
the national interest demanding no less: Now, therefore, be it with integrity, competence and courage; who has served the Filipino people
with dedicated responsibility and patriotism;
Resolved by the House of Representatives, To express its support to the
assumption into office by Vice President Gloria Macapagal-Arroyo as WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of
President of the Republic of the Philippines, to extend its congratulations and true statesmanship, having served the government in various capacities,
to express its support for her administration as a partner in the attainment of among others, as Delegate to the Constitutional Convention, Chairman of the
the Nations goals under the Constitution. Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
the Philippines - qualities which merit his nomination to the position of Vice
Adopted, President of the Republic: Now, therefore, be it

(Sgd.) FELICIANO BELMONTE JR. Resolved as it is hereby resolved by the House of Representatives, That the
House of Representatives confirms the nomination of Senator Teofisto T.
Guingona, Jr. as the Vice President of the Republic of the Philippines.
Speaker

Adopted,
This Resolution was adopted by the House of Representatives on January
24, 2001.
(Sgd) FELICIANO BELMONTE JR.
(Sgd.) ROBERTO P. NAZARENO
Speaker
Secretary General
This Resolution was adopted by the House of Representatives on February
On February 7, 2001, the House of the Representatives passed House 7, 2001.
Resolution No. 178xcviii[98] which states:
(Sgd.) ROBERTO P. NAZARENO
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYOS NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. Secretary General
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
(4) Also, despite receipt of petitioners letter claiming inability, some
WHEREAS, there is a vacancy in the Office of the Vice President due to the twelve (12) members of the Senate signed the following:
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
RESOLUTION
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice President from WHEREAS, the recent transition in government offers the nation an
among the members of the Senate and the House of Representatives who opportunity for meaningful change and challenge;
shall assume office upon confirmation by a majority vote of all members of
both Houses voting separately; WHEREAS, to attain desired changes and overcome awesome challenges
the nation needs unity of purpose and resolute cohesive resolute (sic) will;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of WHEREAS, the Senate of the Philippines has been the forum for vital
Vice President of the Republic of the Philippines; legislative measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of This Resolution was adopted by the Senate on February 7, 2001.
President Gloria Macapagal-Arroyo and resolve to discharge our duties to
attain desired changes and overcome the nations challenges.xcix[99] (Sgd.) LUTGARDO B. BARBO

On February 7, the Senate also passed Senate Resolution No. 82c[100] Secretary of the Senate
which states:
On the same date, February 7, the Senate likewise passed Senate
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL- Resolution No. 83ci[101] which states:
ARROYOS NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS
FUNCTUS OFFICIO
WHEREAS, there is it vacancy in the Office of the Vice-President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; Resolved, as it is hereby resolved. That the Senate recognize that the
Impeachment Court is functus officio and has been terminated.
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice President from Resolved, further, That the Journals of the Impeachment Court of Monday,
among the members of the Senate and the House of Representatives who January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be
shall assume office upon confirmation by a majority vote of all members of
considered approved.
both Houses voting separately;
Resolved, further, That the records of the Impeachment Court including the
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has second envelope be transferred to the Archives of the Senate for proper
nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of safekeeping and preservation in accordance with the Rules of the Senate.
Vice President of the Republic of the Phillippines;
Disposition and retrieval thereof shall be made only upon written approval of
the Senate President.
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with
integrity, competence, and courage; who has served the Filipino people with Resolved, finally. That all parties concerned be furnished copies of this
dedicated responsibility and patriotism; Resolution.

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of


Adopted,
true statesmanship, having served the government in various capacities,
among others, as Delegate to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Justice. Senator of (Sgd.) AQUILINO Q. PIMENTEL,
the land - which qualities merit his nomination to the position of Vice JR.
President of the Republic: Now, therefore, be it
President of the Senate
Resolved, as it is hereby resolved, That the Senate confirm the nomination of
Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the This Resolution was adopted by the Senate on February 7, 2001.
Philippines.
(Sgd.) LUTGARDO B. BARBO
Adopted,
Secretary of the Senate
(Sgd.) AQUILINO Q. PIMENTEL JR.
(5) On February 8, the Senate also passed Resolution No. 84 certifying to
President of the Senate the existence of a vacancy in the Senate and calling on the COMELEC to fill
up such vacancy through election to be held simultaneously with the regular Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys
election on May 14, 2001 and the senatorial candidate garnering the immunity, the extent of the immunity
thirteenth (13th) highest number of votes shall serve only for the unexpired
term of Senator Teofisto T. Guingona, Jr. Petitioner Estrada makes two submissions: first, the cases filed against him
before the respondent Ombudsman should be prohibited because he has not
(6) Both houses of Congress started sending bills to be signed into been convicted in the impeachment proceedings against him; and second,
law by respondent Arroyo as President. he enjoys immunity from all kinds of suit, whether criminal or civil.

(7) Despite the lapse of time and still without any functioning Cabinet, Before resolving petitioners contentions, a revisit of our legal history on
without any recognition from any sector of government, and without any executive immunity will be most enlightening. The doctrine of executive
support from the Armed Forces of the Philippines and the Philippine National immunity in this jurisdiction emerged as a case law. In the 1910 case of
Police, the petitioner continues to claim that his inability to govern is only Forbes, etc. vs. Chuoco tiaco and Crossfield,civ[104] the respondent
momentary. Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-
General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of
What leaps to the eye from these irrefutable facts is that both houses of Police and Chief of the Secret Service of the City of Manila, respectively, for
Congress have recognized respondent Arroyo as the President. damages for allegedly conspiring to deport him to China. In granting a writ of
Implicitly clear in that recognition is the premise that the inability of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
petitioner Estrada is no longer temporary. Congress has clearly
rejected petitioners claim of inability. The principle of nonliability, as herein enunciated, does not mean that the
judiciary has no authority to touch the acts of the Governor-General; that he
The question is whether this Court has jurisdiction to review the claim may, under cover of his office, do what he will, unimpeded and unrestrained.
of temporary inability of petitioner Estrada and thereafter revise the Such a construction would mean that tyranny, under the guise of the
decision of both Houses of Congress recognizing respondent Arroyo as execution of the law, could walk defiantly abroad, destroying rights of person
President of the Philippines. Following Taada v. Cuenco,cii[102] we hold that and of property, wholly free from interference of courts or legislatures. This
this Court cannot exercise its judicial power for this is an issue in regard to does not mean, either, that a person injured by the executive authority by an
which full discretionary authority has been delegated to the Legislative x x x act unjustifiable under the law has no remedy, but must submit in silence. On
branch of the government. Or to use the language in Baker vs. Carr,ciii[103] the contrary, it means, simply, that the Governor-General, like the judges of
there is a textually demonstrable constitutional commitment of the issue to a the courts and the members of the Legislature, may not be personally
coordinate political department or a lack of judicially discoverable and mulcted in civil damages for the consequences of an act executed in the
manageable standards for resolving it. Clearly, the Court cannot pass upon performance of his official duties. The judiciary has full power to, and will,
petitioners claim of inability to discharge the powers and duties of the when the matter is properly presented to it and the occasion justly warrants
presidency. The question is political in nature and addressed solely to it, declare an act of the Governor-General illegal and void and place as
Congress by constitutional fiat. It is a political issue which cannot be nearly as possible in status quo any person who has been deprived his
decided by this Court without transgressing the principle of separation of liberty or his property by such act. This remedy is assured to every person,
powers. however humble or of whatever country, when his personal or property rights
have been invaded, even by the highest authority of the state. The thing
which the judiciary can not do is mulct the Governor-General personally in
In fine, even if the petitioner can prove that he did not resign, still, he cannot
damages which result from the performance of his official duty, any more that
successfully claim that he is a President on leave on the ground that he is
it can a member of the Philippine Commission or the Philippine Assembly.
merely unable to govern temporarily. That claim has been laid to rest by
Congress and the decision that respondent Arroyo is the de jure President Public policy forbids it.
made by a co-equal branch of government cannot be reviewed by this Court.
Neither does this principle of nonliability mean that the chief executive may
not be personally sued at all in relation to acts which he claims to perform as
IV
such official. On the contrary, it clearly appears from the discussion
heretofore had, particularly that portion which touched the liability of judges
and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of to shield the President not only from civil claims but also from criminal cases
his power and authority that he can not be said to have exercise discretion in and other claims. Second, we enlarged its scope so that it would cover even
determining whether or not he had the right to act. What is held here is that acts of the President outside the scope of official duties. And third, we
he will be protected from personal liability for damages not only when he acts broadened its coverage so as to include not only the President but also other
within his authority, but also when he is without authority, provided he persons, be they government officials or private individuals, who acted upon
actually used discretion and judgment, that is, the judicial faculty, in orders of the President. It can be said that at that point most of us were
determining whether he had authority to act or not. In other words, he is suffering from AIDS (or absolute immunity defense syndrome).
entitled to protection in determining the question of his authority. If he decide
wrongly, he is still protected provided the question of his authority was one The Opposition in the then Batasan Pambansa sought the repeal of this
over which two men, reasonably qualified for that position, might honestly Marcosian concept of executive immunity in the 1973 Constitution. The
differ; but he is not protected if the lack of authority to act is so plain that two move was led by then Member of Parliament, now Secretary of Finance,
such men could not honestly differ over its determination. In such case, he Alberto Romulo, who argued that the after incumbency immunity granted
acts, not as Governor-General but as a private individual, and, as such, must to President Marcos violated the principle that a public office is a public trust.
answer for the consequences of his act. He denounced the immunity as a return to the anachronism the king can do
no wrong.cvii[107] The effort failed.
Mr. Justice Johnson underscored the consequences if the Chief Executive
was not granted immunity from suit, viz: x x x. Action upon important matters The 1973 Constitution ceased to exist when President Marcos was ousted
of state delayed; the time and substance of the chief executive spent in from office by the People Power revolution in 1986. When the 1987
wrangling litigation; disrespect engendered for the person of one of the Constitution was crafted, its framers did not reenact the executive
highest officials of the State and for the office he occupies; a tendency to immunity provision of the 1973 Constitution. The following explanation was
unrest and disorder; resulting in a way, in a distrust as to the integrity of given by delegate J. Bernas, viz:cviii[108]
government itself.cv[105]
Mr. Suarez. Thank you.
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the martial law
The last question is with reference to the committees omitting in the draft
years under the late President Ferdinand E. Marcos and the 1973
proposal the immunity provision for the President. I agree with Commissioner
Constitution was born. In 1981, it was amended and one of the
Nolledo that the Committee did very well in striking out this second sentence,
amendments involved executive immunity. Section 17, Article VII stated:
at the very least, of the original provision on immunity from suit under the
1973 Constitution. But would the Committee members not agree to a
The President shall be immune from suit during his tenure. Thereafter, no restoration of at least the first sentence that the President shall be immune
suit whatsoever shall lie for official acts done by him or by others pursuant to from suit during his tenure, considering that if we do not provide him that kind
his specific orders during his tenure. of an immunity, he might be spending all his time facing litigations, as the
President-in-exile in Hawaii is now facing litigations almost daily?
The immunities herein provided shall apply to the incumbent President
referred to in Article XVII of this Constitution. Fr. Bernas. The reason for the omission is that we consider it understood in
present jurisprudence that during his tenure he is immune from suit.
In his second Vicente G. Sinco Professional Chair Lecture entitled,
Presidential Immunity And All The Kings Men: The Law Of Privilege As A Mr. Suarez. So there is no need to express it here.
Defense To Actions For Damages,cvi[106] petitioners learned counsel,
former Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined the
Fr. Bernas. There is no need. It was that way before. The only innovation
modifications effected by this constitutional amendment on the existing law
made by the 1973 Constitution was to make that explicit and to add other
on executive privilege. To quote his disquisition:
things.

In the Philippines, though, we sought to do the Americans one better by Mr. Suarez. On that understanding, I will not press for any more query,
enlarging and fortifying the absolute immunity concept. First, we extended it
Madam President.
I thank the Commissioner for the clarification. We now come to the scope of immunity that can be claimed by petitioner
as a non-sitting President. The cases filed against petitioner Estrada are
We shall now rule on the contentions of petitioner in the light of this history. criminal in character. They involve plunder, bribery and graft and
We reject his argument that he cannot be prosecuted for the reason that he corruption. By no stretch of the imagination can these crimes, especially
must first be convicted in the impeachment proceedings. The impeachment plunder which carries the death penalty, be covered by the allege mantle of
trial of petitioner Estrada was aborted by the walkout of the prosecutors and immunity of a non-sitting president. Petitioner cannot cite any decision of this
by the events that led to his loss of the presidency. Indeed, on February 7, Court licensing the President to commit criminal acts and wrapping him with
2001, the Senate passed Senate Resolution No. 83 Recognizing that the post-tenure immunity from liability. It will be anomalous to hold that
Impeachment Court is Functus Officio.cix[109] Since the Impeachment Court immunity is an inoculation from liability for unlawful acts and
is now functus officio, it is untenable for petitioner to demand that he should omissions. The rule is that unlawful acts of public officials are not acts of the
first be impeached and then convicted before he can be prosecuted. The State and the officer who acts illegally is not acting as such but stands in the
plea if granted, would put a perpetual bar against his prosecution. Such a same footing as any other trespasser.cxiv[114] Indeed, a critical reading of
submission has nothing to commend itself for it will place him in a better current literature on executive immunity will reveal a judicial disinclination
situation than a non-sitting President who has not been subjected to to expand the privilege especially when it impedes the search for truth
impeachment proceedings and yet can be the object of a criminal or impairs the vindication of a right. In the 1974 case of US v.
prosecution. To be sure, the debates in the Constitutional Commission make Nixon,cxv[115] US President Richard Nixon, a sitting President, was
it clear that when impeachment proceedings have become moot due to the subpoenaed to produce certain recordings and documents relating to his
resignation of the President, the proper criminal and civil cases may already conversations with aids and advisers. Seven advisers of President Nixons
be filed against him, viz:cx[110] associates were facing charges of conspiracy to obstruct justice and other
offenses which were committed in a burglary of the Democratic National
xxx Headquarters in Washingtons Watergate Hotel during the 1972 presidential
campaign. President Nixon himself was named an unindicted co-conspirator.
President Nixon moved to quash the subpoena on the ground, among others,
Mr. Aquino. On another point, if an impeachment proceeding has been that the President was not subject to judicial process and that he should first
filed against the President, for example, and the President resigns be impeached and removed from office before he could be made amenable
before judgment of conviction has been rendered by the impeachment to judicial proceedings. The claim was rejected by the US Supreme Court. It
court or by the body, how does it affect the impeachment proceeding? concluded that when the ground for asserting privilege as to subpoenaed
Will it be necessarily dropped? materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands of
Mr. Romulo. If we decide the purpose of impeachment to remove one due process of law in the fair administration of criminal justice. In the 1982
from office, then his resignation would render the case moot and case of Nixon v. Fitzgerald,cxvi[116] the US Supreme Court further held
academic. However, as the provision says, the criminal and civil that the immunity of the President from civil damages covers only official
aspects of it may continue in the ordinary courts. acts. Recently, the US Supreme Court had the occasion to reiterate this
doctrine in the case of Clinton v. Jonescxvii[117] where it held that the US
This is in accord with our ruling in In re: Saturnino Bermudezcxi[111]that Presidents immunity from suits for money damages arising out of their official
incumbent Presidents are immune from suit or from being brought to court acts is inapplicable to unofficial conduct.
during the period of their incumbency and tenure but not beyond.
Considering the peculiar circumstance that the impeachment process against There are more reasons not to be sympathetic to appeals to stretch the
the petitioner has been aborted and thereafter he lost the presidency, scope of executive immunity in our jurisdiction. One of the great themes
petitioner Estrada cannot demand as a condition sine qua non to his criminal of the 1987 Constitution is that a public office is a public trust.cxviii[118] It
prosecution before the Ombudsman that he be convicted in the impeachment declared as a state policy that (t)he State shall maintain honesty and integrity
proceedings. His reliance in the case of Lecaroz vs. in the public service and take positive and effective measures against graft
Sandiganbayancxii[112] and related casescxiii[113]are inapropos for they and corruption."cxix[119] It ordained that (p)ublic officers and employees
have a different factual milieu. 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.cxx[120] It set the rule that (t)he right of the State to
recover properties unlawfully acquired by public officials or employees, from to a fair trial is not incompatible to a free press. To be sure, responsible
them or from their nominees or transferees, shall not be barred by reporting enhances an accuseds right to a fair trial for, as well pointed out, a
prescription, laches or estoppel.cxxi[121] It maintained the Sandiganbayan responsible press has always been regarded as the handmaiden of effective
as an anti-graft court.cxxii[122] It created the office of the Ombudsman and judicial administration, especially in the criminal field x x x. The press does
endowed it with enormous powers, among which is to "(i)nvestigate on its not simply publish information about trials but guards against the miscarriage
own, or on complaint by any person, any act or omission of any public of justice by subjecting the police, prosecutors, and judicial processes to
official, employee, office or agency, when such act or omission appears to be extensive public scrutiny and criticism.
illegal, unjust, improper, or inefficient.cxxiii[123] The Office of the
Ombudsman was also given fiscal autonomy.cxxiv[124] These Pervasive publicity is not per se prejudicial to the right of an accused to fair
constitutional policies will be devalued if we sustain petitioners claim trial. The mere fact that the trial of appellant was given a day-to-day, gavel-
that a non-sitting president enjoys immunity from suit for criminal acts to-gavel coverage does not by itself prove that the publicity so permeated the
committed during his incumbency. mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of members of the bench from pre-trial and other off-court
V publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast
Whether or not the prosecution of petitioner Estrada should be enjoined due tables and right to our bedrooms. These news form part of our everyday
to prejudicial publicity menu of the facts and fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out of touch with the world. We
Petitioner also contends that the respondent Ombudsman should be stopped have not installed the jury system whose members are overly protected from
from conducting the investigation of the cases filed against him due to the publicity lest they lose their impartiality. x x x xxx x x x. Our judges
are learned in the law and trained to disregard off-court evidence and on-
barrage of prejudicial publicity on his guilt. He submits that the respondent
camera performances of parties to a litigation. Their mere exposure to
Ombudsman has developed bias and is all set to file the criminal cases in
publications and publicity stunts does not per se fatally infect their
violation of his right to due process.
impartiality.
There are two (2) principal legal and philosophical schools of thought on how
At best, appellant can only conjure possibility of prejudice on the part of the
to deal with the rain of unrestrained publicity during the investigation and trial
of high profile cases.cxxv[125] The British approach the problem with the trial judge due to the barrage of publicity that characterized the investigation
and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this
presumption that publicity will prejudice a jury. Thus, English courts readily
standard of possibility of prejudice and adopted the test of actual prejudice as
stay and stop criminal trials when the right of an accused to fair trial suffers a
threat.cxxvi[126] The American approach is different. US courts assume a we ruled that to warrant a finding of prejudicial publicity, there must be
skeptical approach about the potential effect of pervasive publicity on the allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, the records
right of an accused to a fair trial. They have developed different strains of
do not show that the trial judge developed actual bias against appellant as a
tests to resolve this issue, i.e., substantial probability of irreparable harm,
consequence of the extensive media coverage of the pre-trial and trial of his
strong likelihood, clear and present danger, etc.
case. The totality of circumstances of the case does not prove that the trial
judge acquired a fixed opinion as a result of prejudicial publicity which is
This is not the first time the issue of trial by publicity has been raised in this incapable if change even by evidence presented during the trial. Appellant
Court to stop the trials or annul convictions in high profile criminal has the burden to prove this actual bias and he has not discharged the
cases.cxxvii[127] In People vs. Teehankee, Jr.,cxxviii[128] later reiterated in burden.
the case of Larranaga vs. Court of Appeals, et al.,cxxix[129] we laid down
the doctrine that:
We expounded further on this doctrine in the subsequent case of Webb vs.
Hon. Raul de Leon, etc.cxxx[130] and its companion cases. viz.:
We cannot sustain appellants claim that he was denied the right to impartial
trial due to prejudicial publicity. It is true that the print and broadcast media
Again, petitioners raise the effect of prejudicial publicity on their right to due
gave the case at bar pervasive publicity, just like all high profile and high
stake criminal trials. Then and now, we now rule that the right of an accused process while undergoing preliminary investigation. We find no procedural
impediment to its early invocation considering the substantial risk to their Amendment right to receive information and ideas means, in the context of
liberty while undergoing a preliminary investigation. trials, that the guarantees of speech and press, standing alone, prohibit
government from summarily closing courtroom doors which had long been
xxx open to the public at the time the First Amendment was adopted. Moreover,
the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the
The democratic settings, media coverage of trials of sensational cases
other First Amendment rights with which it was deliberately linked by the
cannot be avoided and oftentimes, its excessiveness has been aggravated
by kinetic developments in the telecommunications industry. For sure, few draftsmen. A trial courtroom is a public place where the people generally and
cases can match the high volume and high velocity of publicity that attended representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of
the preliminary investigation of the case at bar. Our daily diet of facts and
what takes place.
fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case the NBI, the respondents, their (c) Even though the Constitution contains no provision which by its
lawyers and their sympathizers have participated in this media blitz. The terms guarantees to the public the right to attend criminal trials, various
possibility of media abuses and their threat to a fair trial notwithstanding, fundamental rights, not expressly guaranteed, have been recognized as
criminal trials cannot be completely closed to the press and public. Inn the indispensable to the enjoyment of enumerated rights. The right to attend
seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held: criminal trial is implicit in the guarantees of the First Amendment: without the
freedom to attend such trials, which people have exercised for centuries,
xxx important aspects of freedom of speech and of the press could be
eviscerated.
(a) The historical evidence of the evolution of the criminal trial in Anglo-
Be that as it may, we recognize that pervasive and prejudicial publicity under
American justice demonstrates conclusively that the time this Nations organic
certain circumstances can deprive an accused of his due process right to fair
laws were adopted, criminal trials both here and in England had long been
trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a
presumptively open, thus giving assurance that the proceedings were
finding of prejudicial publicity there must be allegation and proof that the
conducted fairly to all concerned and discouraging perjury, the misconduct of
judges have been unduly influenced, not simply that they might be, by the
participants, or decisions based on secret bias or partiality. In addition, the
barrage of publicity. In the case at bar, we find nothing in the records that will
significant community therapeutic value of public trials was recognized: when
prove that the tone and content of the publicity that attended the investigation
a shocking crime occurs, a community reaction of outrage and public protest
often follows, and thereafter the open processes of justice serve an important of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
prophylactic purpose, providing an outlet for community concern, hostility, Petitioners cannot just rely on the subliminal effects of publicity on the sense
of fairness of the DOJ Panel, for these are basically unbeknown and beyond
and emotion. To work effectively, it is important that societys criminal process
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State
satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L
Prosecutor and Senior State Prosecutors. Their long experience in criminal
Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe
investigation is a factor to consider in determining whether they can easily be
such process. From this unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must be concluded that a blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
presumption of openness inheres in the very nature of a criminal trial under carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by
this Nations system of justice, Cf., e.g., Levine v. United States, 362 US 610,
the parties. The length of time the investigation was conducted despite its
4 L Ed 2d 989, 80 S Ct 1038.
summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance,
(b) The freedoms of speech, press, and assembly, expressly we note, did petitioners seek the disqualification of any member of the DOJ
guaranteed by the First Amendment, share a common core purpose of Panel on the ground of bias resulting from their bombardment of prejudicial
assuring freedom of communication on matters relating to the functioning of publicity. (emphasis supplied)
government. In guaranteeing freedoms such as those of speech and press,
the First Amendment can be read as protecting the right of everyone to
Applying the above ruling, we hold that there is not enough evidence to
attend trials so as give meaning to those explicit guarantees; the First
warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer more Office of the Ombudsman. Predictably, the call from the majority for instant
than hostile headlines to discharge his burden of proof.cxxxi[131] He needs justice will hit a higher decibel while the gnashing of teeth of the minority will
to show more weighty social science evidence to successfully prove the be more threatening. It is the sacred duty of the respondent Ombudsman to
impaired capacity of a judge to render a bias-free decision. Well to note, the balance the right of the State to prosecute the guilty and the right of an
cases against the petitioner are still undergoing preliminary investigation by accused to a fair investigation and trial which has been categorized as the
a special panel of prosecutors in the office of the respondent Ombudsman. most fundamental of all freedoms.cxxxv[135] To be sure, the duty of a
No allegation whatsoever has been made by the petitioner that the minds of prosecutor is more to do justice and less to prosecute. His is the obligation to
the members of this special panel have already been infected by bias insure that the preliminary investigation of the petitioner shall have a circus-
because of the pervasive prejudicial publicity against him. Indeed, the special free atmosphere. He has to provide the restraint against what Lord Bryce
panel has yet to come out with its findings and the Court cannot second calls the impatient vehemence of the majority. Rights in a democracy are not
guess whether its recommendation will be unfavorable to the petitioner. decided by the mob whose judgment is dictated by rage and not by reason.
Nor are rights necessarily resolved by the power of number for in a
The records show that petitioner has instead charged respondent democracy, the dogmatism of the majority is not and should never be the
Ombudsman himself with bias. To quote petitioners submission, the definition of the rule of law. If democracy has proved to be the best form of
respondent Ombudsman has been influenced by the barrage of slanted news government, it is because it has respected the right of the minority to
reports, and he has buckled to the threats and pressures directed at him by convince the majority that it is wrong. Tolerance of multiformity of thoughts,
the mobs.cxxxii[132] News reports have also been quoted to establish that however offensive they may be, is the key to mans progress from the cave to
the respondent Ombudsman has already prejudged the cases of the civilization. Let us not throw away that key just to pander to some peoples
petitionercxxxiii[133]and it is postulated that the prosecutors investigating the prejudice.
petitioner will be influenced by this bias of their superior.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the
Again, we hold that the evidence proffered by the petitioner is insubstantial. respondent Gloria Macapagal-Arroyo as the de jure 14th President of the
The accuracy of the news reports referred to by the petitioner cannot be the Republic are DISMISSED.
subject of judicial notice by this Court especially in light of the denials of the
respondent Ombudsman as to his alleged prejudice and the presumption of SO ORDERED.
good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows to
his subordinates. In truth, our Revised Rules of Criminal Procedure, give
investigating prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.cxxxiv[134]
They can be reversed but they can not be compelled to change their
recommendations nor can they be compelled to prosecute cases which they
believe deserve dismissal. In other words, investigating prosecutors should
not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter
believes that the finding of probable cause against him is the result of bias,
he still has the remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the hooting throng. The cases against the petitioner will
now acquire a different dimension and then move to a new stage - - - the
G.R. No. 113375 May 5, 1994 The pleadings of the parties disclose the factual antecedents which triggered
off the filing of this petition.
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A.
RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as
EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, amended by B.P. Blg. 42) which grants it the authority to hold and conduct
CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. "charity sweepstakes races, lotteries and other similar activities," the PCSO
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE decided to establish an on- line lottery system for the purpose of increasing
WEBB, SEN. WIGBERTO TAADA, and REP. JOKER P. ARROYO, its revenue base and diversifying its sources of funds. Sometime before
petitioners, March 1993, after learning that the PCSO was interested in operating an on-
vs. line lottery system, the Berjaya Group Berhad, "a multinational company and
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, one of the ten largest public companies in Malaysia," long "engaged in,
Office of the President; RENATO CORONA, in his capacity as Assistant among others, successful lottery operations in Asia, running both Lotto and
Executive Secretary and Chairman of the Presidential review Digit games, thru its subsidiary, Sports Toto Malaysia," with its "affiliate, the
Committee on the Lotto, Office of the President; PHILIPPINE CHARITY International Totalizator Systems, Inc., . . . an American public company
SWEEPSTAKES OFFICE; and PHILIPPINE GAMING MANAGEMENT engaged in the international sale or provision of computer systems,
CORPORATION, respondents. softwares, terminals, training and other technical services to the gaming
industry," "became interested to offer its services and resources to PCSO."
Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. As an initial step, Berjaya Group Berhad (through its individual nominees)
Gozon for petitioners. organized with some Filipino investors in March 1993 a Philippine
corporation known as the Philippine Gaming Management Corporation
Renato L. Cayetano and Eleazar B. Reyes for PGMC. (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
Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.
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:
DAVIDE, JR., J.:
1. EXECUTIVE SUMMARY
This is a special civil action for prohibition and injunction, with a prayer for a
temporary restraining order and preliminary injunction, which seeks to xxx xxx xxx
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 1.2. PCSO is seeking a suitable contractor which shall build,
at its own expense, all the facilities ('Facilities') needed to
lottery system, also known as "lotto."
operate and maintain a nationwide on-line lottery system.
PCSO shall lease the Facilities for a fixed percentage
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non- ofquarterly gross receipts. All receipts from ticket sales shall
stock domestic corporation composed of civic-spirited citizens, pastors, be turned over directly to PCSO. All capital, operating
priests, nuns, and lay leaders who are committed to the cause of truth, expenses and expansion expenses and risks shall be for the
justice, and national renewal. The rest of the petitioners, except Senators exclusive account of the Lessor.
Freddie Webb and Wigberto Taada and Representative Joker P. Arroyo,
are suing in their capacities as members of the Board of Trustees of
xxx xxx xxx
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. 1.4. The lease shall be for a period not exceeding fifteen (15)
years.
1.5. The Lessor is expected to submit a comprehensive 2.4.2. THE LESSOR
nationwide lottery development plan ("Development Plan")
which will include the game, the marketing of the games, The Proponent is expected to furnish and maintain the
and the logistics to introduce the games to all the cities and Facilities, including the personnel needed to operate the
municipalities of the country within five (5) years. computers, the communications network and sales offices
under a build-lease basis. The printing of tickets shall be
xxx xxx xxx undertaken under the supervision and control of PCSO. The
Facilities shall enable PCSO to computerize the entire
1.7. The Lessor shall be selected based on its technical gaming system.
expertise, hardware and software capability, maintenance
support, and financial resources. The Development Plan The Proponent is expected to formulate and design
shall have a substantial bearing on the choice of the Lessor. consumer-oriented Master Games Plan suited to the
The Lessor shall be a domestic corporation, with at least marketplace, especially geared to Filipino gaming habits and
sixty percent (60%) of its shares owned by Filipino preferences. In addition, the Master Games Plan is expected
shareholders. to include a Product Plan for each game and explain how
each will be introduced into the market. This will be an
xxx xxx xxx integral part of the Development Plan which PCSO will
require from the Proponent.
The Office of the President, the National Disaster Control
Coordinating Council, the Philippine National Police, and the xxx xxx xxx
National Bureau of Investigation shall be authorized to use
the nationwide telecommunications system of the Facilities The Proponent is expected to provide upgrades to
Free of Charge. modernize the entire gaming system over the life ofthe lease
contract.
1.8. Upon expiration of the lease, the Facilities shall be
owned by PCSO without any additional consideration. 3 The Proponent is expected to provide technology transfer to
PCSO technical personnel. 4
xxx xxx xxx
7. GENERAL GUIDELINES FOR PROPONENTS
2.2. OBJECTIVES
xxx xxx xxx
The objectives of PCSO in leasing the Facilities from a
private entity are as follows: 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
xxx xxx xxx 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
2.2.2. Enable PCSO to operate a nationwide on-line Lottery
system at no expense or risk to the government.
xxx xxx xxx
xxx xxx xxx
16. DEFINITION OF TERMS
2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR
Facilities: All capital equipment, computers, terminals,
xxx xxx xxx software, nationwide telecommunication network, ticket
sales offices, furnishings, and fixtures; printing costs; cost of PCSO and respondent PGMC. 16 The President, per the press statement
salaries and wages; advertising and promotion expenses; issued by the Office of the President, approved it on 20 December 1993.17
maintenance costs; expansion and replacement costs;
security and insurance, and all other related expenses In view of their materiality and relevance, we quote the following salient
needed to operate nationwide on-line lottery system.6 provisions of the Contract of Lease:

Considering the above citizenship requirement, the PGMC claims that the 1. DEFINITIONS
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.
The following words and terms shall have the following
respective meanings:
On 15 August 1993, PGMC submitted its bid to the PCSO.7
1.1 Rental Fee Amount to be paid by PCSO to the
The bids were evaluated by the Special Pre-Qualification Bids and Awards LESSOR as compensation for the fulfillment of the
Committee (SPBAC) for the on-line lottery and its Bid Report was thereafter obligations of the LESSOR under this Contract, including,
submitted to the Office of the President. 8 The submission was preceded by but not limited to the lease of the Facilities.
complaints by the Committee's Chairperson, Dr. Mita Pardo de Tavera. 9
xxx xxx xxx
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
1.3 Facilities All capital equipment, computers, terminals,
system and that the corresponding implementing contract would be
software (including source codes for the On-Line Lottery
submitted not later than 8 November 1993 "for final clearance and approval
application software for the terminals, telecommunications
by the Chief Executive." 10 This announcement was published in the Manila and central systems), technology, intellectual property rights,
Standard, Philippine Daily Inquirer, and the Manila Times on 29 October telecommunications network, and furnishings and fixtures.
1993. 11
1.4 Maintenance and Other Costs All costs and expenses
On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel
relating to printing, manpower, salaries and wages,
V. Ramos strongly opposing the setting up to the on-line lottery system on advertising and promotion, maintenance, expansion and
the basis of serious moral and ethical considerations. 12
replacement, security and insurance, and all other related
expenses needed to operate an On-Line Lottery System,
At the meeting of the Committee on Games and Amusements of the Senate which shall be for the account of the LESSOR. All expenses
on 12 November 1993, KILOSBAYAN reiterated its vigorous opposition to relating to the setting-up, operation and maintenance of
the on-line lottery on account of its immorality and illegality. 13 ticket sales offices of dealers and retailers shall be borne by
PCSO's dealers and retailers.
On 19 November 1993, the media reported that despite the opposition,
"Malacaang will push through with the operation of an on-line lottery system 1.5 Development Plan The detailed plan of all games, the
nationwide" and that it is actually the respondent PCSO which will operate marketing thereof, number of players, value of winnings and
the lottery while the winning corporate bidders are merely "lessors." 14 the logistics required to introduce the games, including the
Master Games Plan as approved by PCSO, attached hereto
On 1 December 1993, KILOSBAYAN requested copies of all documents as Annex "A", modified as necessary by the provisions of
pertaining to the lottery award from Executive Secretary Teofisto Guingona, this Contract.
Jr. In his answer of 17 December 1993, the Executive Secretary informed
KILOSBAYAN that the requested documents would be duly transmitted xxx xxx xxx
before the end of the month. 15. However, on that same date, an agreement
denominated as "Contract of Lease" was finally executed by respondent
1.8 Escrow Deposit The proposal deposit in the sum of 5.2 PCSO shall have control over revenues and receipts of
Three Hundred Million Pesos (P300,000,000.00) submitted whatever nature from the On-Line Lottery System. After
by the LESSOR to PCSO pursuant to the requirements of paying the Rental Fee to the LESSOR, PCSO shall have
the Request for Proposals. exclusive responsibility to determine the Revenue Allocation
Plan; Provided, that the same shall be consistent with the
2. SUBJECT MATTER OF THE LEASE requirement of R.A. No. 1169, as amended, which fixes a
prize fund of fifty five percent (55%) on the average.
The LESSOR shall build, furnish and maintain at its own
expense and risk the Facilities for the On-Line Lottery 5.3 PCSO shall have exclusive control over the printing of
System of PCSO in the Territory on an exclusive basis. The tickets, including but not limited to the design, text, and
LESSOR shall bear all Maintenance and Other Costs as contents thereof.
defined herein.
5.4 PCSO shall have sole responsibility over the
xxx xxx xxx 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
3. RENTAL FEE
the On-Line Lottery System. Nothing herein shall preclude
the LESSOR from recommending dealers or retailers for
For and in consideration of the performance by the LESSOR appointment by PCSO, which shall act on said
of its obligations herein, PCSO shall pay LESSOR a fixed recommendation within forty-eight (48) hours.
Rental Fee equal to four point nine percent (4.9%) of gross
receipts from ticket sales, payable net of taxes required by
5.5 PCSO shall designate the necessary personnel to
law to be withheld, on a semi-monthly basis. Goodwill,
franchise and similar fees shall belong to PCSO. 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
4. LEASE PERIOD and fixtures, in all offices of the LESSOR, including but not
limited to its headquarters, alternate site, regional and area
The period of the lease shall commence ninety (90) days offices.
from the date of effectivity of this Contract and shall run for a
period of eight (8) years thereafter, unless sooner terminated 5.6 PCSO shall have the responsibility to resolve, and
in accordance with this Contract. exclusive jurisdiction over, all matters involving the operation
of the On-Line Lottery System not otherwise provided in this
5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR Contract.
OF THE ON-LINE LOTTERY SYSTEM
5.7 PCSO shall promulgate procedural and coordinating
PCSO shall be the sole and individual operator of the On- rules governing all activities relating to the On-Line Lottery
Line Lottery System. Consequently: System.

5.1 PCSO shall have sole responsibility to decide whether to 5.8 PCSO will be responsible for the payment of prize
implement, fully or partially, the Master Games Plan of the monies, commissions to agents and dealers, and taxes and
LESSOR. PCSO shall have the sole responsibility to levies (if any) chargeable to the operator of the On-Line
determine the time for introducing new games to the market. Lottery System. The LESSOR will bear all other
The Master Games Plan included in Annex "A" hereof is Maintenance and Other Costs, except as provided in Section
hereby approved by PCSO. 1.4.
5.9 PCSO shall assist the LESSOR in the following: 6.3 Comply with all laws, statues, rules and regulations,
orders and directives, obligations and duties by which it is
5.9.1 Work permits for the LESSOR's staff; legally bound.

5.9.2 Approvals for importation of the 6.4 Duly pay and discharge all taxes, assessments and
Facilities; government charges now and hereafter imposed of whatever
nature that may be legally levied upon it.
5.9.3 Approvals and consents for the On-
Line Lottery System; and 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
5.9.4 Business and premises licenses for all
offices of the LESSOR and licenses for the the On-Line Lottery System more cost-effective and/or
telecommunications network. competitive, and as may be required by PCSO shall not
impose such requirements unreasonably nor arbitrarily.
5.10 In the event that PCSO shall pre-terminate this Contract
6.6 Provide PCSO with management terminals which will
or suspend the operation of the On-Line Lottery System, in
breach of this Contract and through no fault of the LESSOR, allow real-time monitoring of the On-Line Lottery System.
PCSO shall promptly, and in any event not later than sixty
(60) days, reimburse the LESSOR the amount of its total 6.7 Upon effectivity of this Contract, commence the training
investment cost associated with the On-Line Lottery System, of PCSO and other local personnel and the transfer of
including but not limited to the cost of the Facilities, and technology and expertise, such that at the end of the term of
further compensate the LESSOR for loss of expected net this Contract, PCSO will be able to effectively take-over the
profit after tax, computed over the unexpired term of the Facilities and efficiently operate the On-Line Lottery System.
lease.
6.8 Undertake a positive advertising and promotions
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR campaign for both institutional and product lines without
engaging in negative advertising against other lessors.
The LESSOR is one of not more than three (3) lessors of
similar facilities for the nationwide On-Line Lottery System of 6.9 Bear all expenses and risks relating to the Facilities
PCSO. It is understood that the rights of the LESSOR are including, but not limited to, Maintenance and Other Costs
primarily those of a lessor of the Facilities, and and:
consequently, all rights involving the business aspects of the
use of the Facilities are within the jurisdiction of PCSO. xxx xxx xxx
During the term of the lease, the LESSOR shall.
6.10 Bear all risks if the revenues from ticket sales, on an
6.1 Maintain and preserve its corporate existence, rights and annualized basis, are insufficient to pay the entire prize
privileges, and conduct its business in an orderly, efficient, money.
and customary manner.
6.11 Be, and is hereby, authorized to collect and retain for its
6.2 Maintain insurance coverage with insurers acceptable to own account, a security deposit from dealers and retailers, in
PCSO on all Facilities. 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 PCSO may, at its option, require the LESSOR to establish
the telecommunications network in accordance with the
6.12 Comply with procedural and coordinating rules issued above Timetable in provinces where the LESSOR has not
by PCSO. 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
7. REPRESENTATIONS AND WARRANTIES
lines are connected to Metro Manila, then the obligation of
the LESSOR to connect such municipality or city through a
The LESSOR represents and warrants that: telecommunications network shall cease with respect to
such municipality or city. The voice facility will cover the four
7.1 The LESSOR is corporation duly organized and existing offices of the Office of the President, National Disaster
under the laws of the Republic of the Philippines, at least Control Coordinating Council, Philippine National Police and
sixty percent (60%) of the outstanding capital stock of which the National Bureau of Investigation, and each city and
is owned by Filipino shareholders. The minimum required municipality in the Territory except Metro Manila, and those
Filipino equity participation shall not be impaired through cities and municipalities which have easy telephone access
voluntary or involuntary transfer, disposition, or sale of from these four offices. Voice calls from the four offices shall
shares of stock by the present stockholders. be transmitted via radio or VSAT to the remote municipalities
which will be connected to this voice facility through wired
7.2 The LESSOR and its Affiliates have the full corporate network or by radio. The facility shall be designed to handle
and legal power and authority to own and operate their four private conversations at any one time.
properties and to carry on their business in the place where
such properties are now or may be conducted. . . . xxx xxx xxx

7.3 The LESSOR has or has access to all the financing and 13. STOCK DISPERSAL PLAN
funding requirements to promptly and effectively carry out
the terms of this Contract. . . . Within two (2) years from the effectivity of this Contract, the
LESSOR shall cause itself to be listed in the local stock
7.4 The LESSOR has or has access to all the managerial exchange and offer at least twenty five percent (25%) of its
and technical expertise to promptly and effectively carry out equity to the public.
the terms of this Contract. . . .
14. NON-COMPETITION
xxx xxx xxx
The LESSOR shall not, directly or indirectly, undertake any
10. TELECOMMUNICATIONS NETWORK activity or business in competition with or adverse to the On-
Line Lottery System of PCSO unless it obtains the latter's
The LESSOR shall establish a telecommunications network prior written consent thereto.
that will connect all municipalities and cities in the Territory in
accordance with, at the LESSOR's option, either of the 15. HOLD HARMLESS CLAUSE
LESSOR's proposals (or a combinations of both such
proposals) attached hereto as Annex "B," and under the 15.1 The LESSOR shall at all times protect and defend, at its
following PCSO schedule: cost and expense, PCSO from and against any and all
liabilities and claims for damages and/or suits for or by
xxx xxx xxx 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 Performance Bond shall likewise be forfeited in favor of
whatsoever. PCSO.

15.2 The LESSOR hereby covenants and agrees to 17.2 Should the LESSOR fail to comply with the terms of the
indemnify and hold PCSO harmless from all liabilities, Timetables provided in Section 9 and 10, it shall be subject
charges, expenses (including reasonable counsel fees) and to an initial Penalty of Twenty Thousand Pesos
costs on account of or by reason of any such death or (P20,000.00), per city or municipality per every month of
deaths, injury or injuries, liabilities, claims, suits or losses delay; Provided, that the Penalty shall increase, every ninety
caused by the LESSOR's fault or negligence. (90) days, by the amount of Twenty Thousand Pesos
(P20,000.00) per city or municipality per month, whilst shall
15.3 The LESSOR shall at all times protect and defend, at its failure to comply persists. The penalty shall be deducted by
own cost and expense, its title to the facilities and PCSO's PCSO from the rental fee.
interest therein from and against any and all claims for the
duration of the Contract until transfer to PCSO of ownership xxx xxx xxx
of the serviceable Facilities.
20. OWNERSHIP OF THE FACILITIES
16. SECURITY
After expiration of the term of the lease as provided in
16.1 To ensure faithful compliance by the LESSOR with the Section 4, the Facilities directly required for the On-Line
terms of the Contract, the LESSOR shall secure a Lottery System mentioned in Section 1.3 shall automatically
Performance Bond from a reputable insurance company or belong in full ownership to PCSO without any further
companies acceptable to PCSO. consideration other than the Rental Fees already paid during
the effectivity of the lease.
16.2 The Performance Bond shall be in the initial amount of
Three Hundred Million Pesos (P300,000,000.00), to its U.S. 21. TERMINATION OF THE LEASE
dollar equivalent, and shall be renewed to cover the duration
of the Contract. However, the Performance Bond shall be PCSO may terminate this Contract for any breach of the
reduced proportionately to the percentage of unencumbered material provisions of this Contract, including the following:
terminals installed; Provided, that the Performance Bond
shall in no case be less than One Hundred Fifty Million
21.1 The LESSOR is insolvent or bankrupt or unable to pay
Pesos (P150,000,000.00).
its debts, stops or suspends or threatens to stop or suspend
payment of all or a material part of its debts, or proposes or
16.3 The LESSOR may at its option maintain its Escrow makes a general assignment or an arrangement or
Deposit as the Performance Bond. . . . compositions with or for the benefit of its creditors; or

17. PENALTIES 21.2 An order is made or an effective resolution passed for


the winding up or dissolution of the LESSOR or when it
17.1 Except as may be provided in Section 17.2, should the ceases or threatens to cease to carry on all or a material part
LESSOR fail to take remedial measures within seven (7) of its operations or business; or
days, and rectify the breach within thirty (30) days, from
written notice by PCSO of any wilfull or grossly negligent 21.3 Any material statement, representation or warranty
violation of the material terms and conditions of this made or furnished by the LESSOR proved to be materially
Contract, all unencumbered Facilities shall automatically false or misleading;
become the property of PCSO without consideration and
without need for further notice or demand by PCSO. The
said termination to take effect upon receipt b) Under Act No. 3846 and established jurisprudence, a
of written notice of termination by the Congressional franchise is required before any person may
LESSOR and failure to take remedial action be allowed to establish and operate said telecommunications
within seven (7) days and cure or remedy system;
the same within thirty (30) days from notice.
c) Under Section 11, Article XII of the Constitution, a less
Any suspension, cancellation or termination than 60% Filipino-owned and/or controlled corporation, like
of this Contract shall not relieve the the PGMC, is disqualified from operating a public service,
LESSOR of any liability that may have like the said telecommunications system; and
already accrued hereunder.
d) Respondent PGMC is not authorized by its charter and
xxx xxx xxx under the Foreign Investment Act (R.A. No. 7042) to install,
establish and operate the on-line lotto and
Considering the denial by the Office of the President of its protest and the telecommunications systems.18
statement of Assistant Executive Secretary Renato Corona that "only a court
injunction can stop Malacaang," and the imminent implementation of the Petitioners submit that the PCSO cannot validly enter into the assailed
Contract of Lease in February 1994, KILOSBAYAN, with its co-petitioners, Contract of Lease with the PGMC because it is an arrangement wherein the
filed on 28 January 1994 this petition. 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
In support of the petition, the petitioners claim that: 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,
. . . X X THE OFFICE OF THE PRESIDENT,
company or entity, foreign or domestic." Even granting arguendo that a lease
ACTING THROUGH RESPONDENTS
EXECUTIVE SECRETARY AND/OR 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
ASSISTANT EXECUTIVE SECRETARY
"collaboration, association, or joint venture between respondents PCSO and
FOR LEGAL AFFAIRS, AND THE PCSO
PGMC in the holding of the On-Line Lottery System," and that there are
GRAVELY ABUSE[D] THEIR DISCRETION
AND/OR FUNCTIONS TANTAMOUNT TO terms and conditions of the Contract "showing that respondent PGMC is the
LACK OF JURISDICTION AND/OR actual lotto operator and not respondent PCSO."19
AUTHORITY IN RESPECTIVELY: (A)
APPROVING THE AWARD OF THE The petitioners also point out that paragraph 10 of the Contract of Lease
CONTRACT TO, AND (B) ENTERING INTO requires or authorizes PGMC to establish a telecommunications network that
THE SO-CALLED "CONTRACT OF LEASE" will connect all the municipalities and cities in the territory. However, PGMC
WITH, RESPONDENT PGMC FOR THE cannot do that because it has no franchise from Congress to construct,
INSTALLATION, ESTABLISHMENT AND install, establish, or operate the network pursuant to Section 1 of Act No.
OPERATION OF THE ON-LINE LOTTERY 3846, as amended. Moreover, PGMC is a 75% foreign-owned or controlled
AND TELECOMMUNICATION SYSTEMS corporation and cannot, therefore, be granted a franchise for that purpose
REQUIRED AND/OR AUTHORIZED because of Section 11, Article XII of the 1987 Constitution. Furthermore,
UNDER THE SAID CONTRACT, since "the subscribed foreign capital" of the PGMC "comes to about 75%, as
CONSIDERING THAT: 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
a) Under Section 1 of the Charter of the PCSO, the PCSO is
negative list under the Foreign Investments Act (R.A. No. 7042) where only
prohibited from holding and conducting lotteries "in
up to 40% foreign capital is allowed. 20
collaboration, association or joint venture with any person,
association, company or entity";
Finally, the petitioners insist that the Articles of Incorporation of PGMC do not is limited to that of a lessor of the facilities" for the on-line lottery system; in
authorize it to establish and operate an on-line lottery and "strict technical and legal sense," said contract "can be categorized as a
telecommunications systems.21 contract for a piece of work as defined in Articles 1467, 1713 and 1644 of the
Civil Code."
Accordingly, the petitioners pray that we issue a temporary restraining order
and a writ of preliminary injunction commanding the respondents or any They further claim that the establishment of the telecommunications system
person acting in their places or upon their instructions to cease and desist stipulated in the Contract of Lease does not require a congressional
from implementing the challenged Contract of Lease and, after hearing the franchise because PGMC will not operate a public utility; moreover, PGMC's
merits of the petition, that we render judgment declaring the Contract of "establishment of a telecommunications system is not intended to establish a
Lease void and without effect and making the injunction permanent. 22 telecommunications business," and it has been held that where the facilities
are operated "not for business purposes but for its own use," a legislative
We required the respondents to comment on the petition. 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.
In its Comment filed on 1 March 1994, private respondent PGMC asserts that
Reyes, 25 "it can establish a telecommunications system even without a
"(1) [it] is merely an independent contractor for a piece of work, (i.e., the
legislative franchise because not every public utility is required to secure a
building and maintenance of a lottery system to be used by PCSO in the
legislative franchise before it could establish, maintain, and operate the
operation of its lottery franchise); and (2) as such independent contractor,
service"; and, in any case, "PGMC's establishment of the
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 telecommunications system stipulated in its contract of lease with PCSO falls
PGMC as such statutory limitation is viewed from the context, intent, and within the exceptions under Section 1 of Act No. 3846 where a legislative
franchise is not necessary for the establishment of radio stations."
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 They also argue that the contract does not violate the Foreign Investment Act
telecommunications network, which the petitioners even consider as an of 1991; that the Articles of Incorporation of PGMC authorize it to enter into
"indispensable requirement" of an on-line lottery system. Finally, it states that the Contract of Lease; and that the issues of "wisdom, morality and propriety
the execution and implementation of the contract does not violate the of acts of the executive department are beyond the ambit of judicial review."
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 Finally, the public respondents allege that the petitioners have no standing to
should be ventilated in another forum; and that the "petitioners do not appear maintain the instant suit, citing our resolution in Valmonte vs. Philippine
to have the legal standing or real interest in the subject contract and in Charity Sweepstakes Office. 26
obtaining the reliefs sought." 23
Several parties filed motions to intervene as petitioners in this case, 27 but
In their Comment filed by the Office of the Solicitor General, public only the motion of Senators Alberto Romulo, Arturo Tolentino, Francisco
respondents Executive Secretary Teofisto Guingona, Jr., Assistant Executive Tatad, Gloria Macapagal-Arroyo, Vicente Sotto III, John Osmea, Ramon
Secretary Renato Corona, and the PCSO maintain that the contract of lease Revilla, and Jose Lina 28 was granted, and the respondents were required to
in question does not violate Section 1 of R.A. No. 1169, as amended by B.P. comment on their petition in intervention, which the public respondents and
Blg. 42, and that the petitioner's interpretation of the phrase "in collaboration, PGMC did.
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 In the meantime, the petitioners filed with the Securities and Exchange
entity, is vested with the basic and essential prerogative to enter into all kinds Commission on 29 March 1994 a petition against PGMC for the nullification
of transactions or contracts as may be necessary for the attainment of its of the latter's General Information Sheets. That case, however, has no
purposes and objectives." What the PCSO charter "seeks to prohibit is that bearing in this petition.
arrangement akin to a "joint venture" or partnership where there is
"community of interest in the business, sharing of profits and losses, and a
On 11 April 1994, we heard the parties in oral arguments. Thereafter, we
mutual right of control," a characteristic which does not obtain in a contract of resolved to consider the matter submitted for resolution and pending
lease." With respect to the challenged Contract of Lease, the "role of PGMC
resolution of the major issues in this case, to issue a temporary restraining and substantial interest" on the matter. There is relevance to
order commanding the respondents or any person acting in their place or this excerpt from a separate opinion in Aquino, Jr. v.
upon their instructions to cease and desist from implementing the challenged Commission on Elections [L-40004, January 31, 1975, 62
Contract of Lease. SCRA 275]: "Then there is the attack on the standing of
petitioners, as vindicating at most what they consider a
In the deliberation on this case on 26 April 1994, we resolved to consider public right and not protecting their rights as individuals. This
only these issues: (a) the locus standi of the petitioners, and (b) the legality is to conjure the specter of the public right dogma as an
and validity of the Contract of Lease in the light of Section 1 of R.A. No. inhibition to parties intent on keeping public officials staying
1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding on the path of constitutionalism. As was so well put by Jaffe;
and conducting lotteries "in collaboration, association or joint venture with "The protection of private rights is an essential constituent of
any person, association, company or entity, whether domestic or foreign." On public interest and, conversely, without a well-ordered state
the first issue, seven Justices voted to sustain the locus standi of the there could be no enforcement of private rights. Private and
petitioners, while six voted not to. On the second issue, the seven Justices public interests are, both in a substantive and procedural
were of the opinion that the Contract of Lease violates the exception to sense, aspects of the totality of the legal order." Moreover,
Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, petitioners have convincingly shown that in their capacity as
invalid and contrary to law. The six Justices stated that they wished to taxpayers, their standing to sue has been amply
express no opinion thereon in view of their stand on the first issue. The Chief demonstrated. There would be a retreat from the liberal
Justice took no part because one of the Directors of the PCSO is his brother- approach followed in Pascual v. Secretary of Public Works,
in-law. foreshadowed by the very decision of People v. Vera where
the doctrine was first fully discussed, if we act differently
This case was then assigned to this ponente for the writing of the opinion of now. I do not think we are prepared to take that step.
Respondents, however, would hard back to the American
the Court.
Supreme Court doctrine in Mellon v. Frothingham, with their
claim that what petitioners possess "is an interest which is
The preliminary issue on the locus standi of the petitioners should, indeed, shared in common by other people and is comparatively so
be resolved in their favor. A party's standing before this Court is a procedural minute and indeterminate as to afford any basis and
technicality which it may, in the exercise of its discretion, set aside in view of assurance that the judicial process can act on it." That is to
the importance of the issues raised. In the landmark Emergency Powers speak in the language of a bygone era, even in the United
Cases, 29 this Court brushed aside this technicality because "the States. For as Chief Justice Warren clearly pointed out in the
transcendental importance to the public of these cases demands that they be later case of Flast v. Cohen, the barrier thus set up if not
settled promptly and definitely, brushing aside, if we must, technicalities of breached has definitely been lowered.
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
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
discretion as to whether or not it should be entertained," 30 or that it "enjoys
Tan,33 reiterated in Basco vs. Philippine Amusements and Gaming
an open discretion to entertain the same or not." 31 In De La Llana vs. Alba,
Corporation,34 this Court stated:
32 this Court declared:

Objections to taxpayers' suits for lack of sufficient personality


1. The argument as to the lack of standing of petitioners is
standing or interest are, however, in the main procedural
easily resolved. As far as Judge de la Llana is concerned, he
matters. Considering the importance to the public of the
certainly falls within the principle set forth in Justice Laurel's
opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus: "The cases at bar, and in keeping with the Court's duty, under the
unchallenged rule is that the person who impugns the 1987 Constitution, to determine whether or not the other
validity of a statute must have a personal and substantial branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not
interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement [Ibid, 89]. abused the discretion given to them, this Court has brushed
aside technicalities of procedure and has taken cognizance
The other petitioners as members of the bar and officers of
the court cannot be considered as devoid of "any personal of these petitions.
and in Association of Small Landowners in the Philippines, Inc. vs. Secretary complicated specialty of federal jurisdiction, the solution of
of Agrarian Reform,35 it declared: whose problems is in any event more or less determined by
the specific circumstances of individual situations, to set out
With particular regard to the requirement of proper party as the divergent grounds in support of standing in these cases.
applied in the cases before us, we hold that the same is
satisfied by the petitioners and intervenors because each of In line with the liberal policy of this Court on locus standi, ordinary taxpayers,
them has sustained or is in danger of sustaining an members of Congress, and even association of planters, and non-profit civic
immediate injury as a result of the acts or measures organizations were allowed to initiate and prosecute actions before this Court
complained of. [Ex Parte Levitt, 303 US 633]. And even if, to question the constitutionality or validity of laws, acts, decisions, rulings, or
strictly speaking, they are not covered by the definition, it is orders of various government agencies or instrumentalities. Among such
still within the wide discretion of the Court to waive the cases were those assailing the constitutionality of (a) R.A. No. 3836 insofar
requirement and so remove the impediment to its addressing as it allows retirement gratuity and commutation of vacation and sick leave to
and resolving the serious constitutional questions raised. Senators and Representatives and to elective officials of both Houses of
Congress;38 (b) Executive Order No. 284, issued by President Corazon C.
In the first Emergency Powers Cases, ordinary citizens and Aquino on 25 July 1987, which allowed members of the cabinet, their
taxpayers were allowed to question the constitutionality of undersecretaries, and assistant secretaries to hold other government offices
several executive orders issued by President Quirino or positions; 39 (c) the automatic appropriation for debt service in the
although they were invoking only an indirect and general General Appropriations Act; 40 (d) R.A. No. 7056 on the holding of
interest shared in common with the public. The Court desynchronized elections; 41 (d) R.A. No. 1869 (the charter of the Philippine
dismissed the objective that they were not proper parties and Amusement and Gaming Corporation) on the ground that it is contrary to
ruled that the transcendental importance to the public of morals, public policy, and order; 42 and (f) R.A. No. 6975, establishing the
these cases demands that they be settled promptly and Philippine National
definitely, brushing aside, if we must, technicalities of Police. 43
procedure. We have since then applied this exception in
many other cases. (Emphasis supplied) 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
In Daza vs. Singson, 36 this Court once more said: 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
. . . For another, we have early as in the Emergency Powers Constitution and P.D. No. 1031 insofar as it directed the COMELEC to
Cases that where serious constitutional questions are 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
involved, "the transcendental importance to the public of
land at Roppongi, Minato-ku, Tokyo, Japan; 46 (d) the approval without
these cases demands that they be settled promptly and
hearing by the Board of Investments of the amended application of the
definitely, brushing aside, if we must, technicalities of
Bataan Petrochemical Corporation to transfer the site of its plant from Bataan
procedure." The same policy has since then been
consistently followed by the Court, as in Gonzales vs. to Batangas and the validity of such transfer and the shift of feedstock from
Commission on Elections [21 SCRA 774] . . . 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 Federal Supreme Court of the United States of America has also the Fiscal Incentives Review Board exempting the National Power
expressed its discretionary power to liberalize the rule on locus standi. In Corporation from indirect tax and duties; 48 (f) the orders of the Energy
United States vs. Federal Power Commission and Virginia Rea Association Regulatory Board of 5 and 6 December 1990 on the ground that the hearings
vs. Federal Power Commission,37 it held: conducted on the second provisional increase in oil prices did not allow the
petitioner substantial cross-examination; 49 (g) Executive Order No. 478
We hold that petitioners have standing. Differences of view, which levied a special duty of P0.95 per liter or P151.05 per barrel of
however, preclude a single opinion of the Court as to both imported crude oil and P1.00 per liter of imported oil products; 50 (h)
petitioners. It would not further clarification of this resolutions of the Commission on Elections concerning the apportionment,
by district, of the number of elective members of Sanggunians; 51 and (i) such frequency and manner, as shall be
memorandum orders issued by a Mayor affecting the Chief of Police of determined, and subject to such rules and
Pasay City.52 regulations as shall be promulgated by the
Board of Directors.
In the 1975 case of Aquino vs. Commission on Elections, 53 this Court,
despite its unequivocal ruling that the petitioners therein had no personality B. Subject to the approval of the Minister of
to file the petition, resolved nevertheless to pass upon the issues raised Human Settlements, to engage in health and
because of the far-reaching implications of the petition. We did no less in De welfare-related investments, programs,
Guia vs. COMELEC 54 where, although we declared that De Guia "does not projects and activities which may be profit-
appear to have locus standi, a standing in law, a personal or substantial oriented, by itself or in collaboration,
interest," we brushed aside the procedural infirmity "considering the association or joint venture with any person,
importance of the issue involved, concerning as it does the political exercise association, company or entity, whether
of qualified voters affected by the apportionment, and petitioner alleging domestic or foreign, except for the activities
abuse of discretion and violation of the Constitution by respondent." mentioned in the preceding paragraph (A),
for the purpose of providing for permanent
We find the instant petition to be of transcendental importance to the public. and continuing sources of funds for health
The issues it raised are of paramount public interest and of a category even programs, including the expansion of
higher than those involved in many of the aforecited cases. The ramifications existing ones, medical assistance and
of such issues immeasurably affect the social, economic, and moral well- services, and/or charitable grants: Provided,
being of the people even in the remotest barangays of the country and the That such investment will not compete with
counter-productive and retrogressive effects of the envisioned on-line lottery the private sector in areas where
system are as staggering as the billions in pesos it is expected to raise. The investments are adequate as may be
legal standing then of the petitioners deserves recognition and, in the determined by the National Economic and
exercise of its sound discretion, this Court hereby brushes aside the Development Authority. (emphasis supplied)
procedural barrier which the respondents tried to take advantage of.
The language of the section is indisputably clear that with respect to its
And now on the substantive issue. franchise or privilege "to hold and conduct charity sweepstakes races,
lotteries and other similar activities," the PCSO cannot exercise it "in
Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO collaboration, association or joint venture" with any other party. This is the
from holding and conducting lotteries "in collaboration, association or joint unequivocal meaning and import of the phrase "except for the activities
mentioned in the preceding paragraph (A)," namely, "charity sweepstakes
venture with any person, association, company or entity, whether domestic or
races, lotteries and other similar activities."
foreign." Section 1 provides:

Sec. 1. The Philippine Charity Sweepstakes Office. The B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered
Philippine Charity Sweepstakes Office, hereinafter by Committee Report No. 103 as reported out by the Committee on Socio-
Economic Planning and Development of the Interim Batasang Pambansa.
designated the Office, shall be the principal government
The original text of paragraph B, Section 1 of Parliamentary Bill No. 622
agency for raising and providing for funds for health
reads as follows:
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 To engage in any and all investments and related profit-
thousand four hundred fifty-nine, as amended, and shall oriented projects or programs and activities by itself or in
have the authority: 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
A. To hold and conduct charity sweepstakes
races, lotteries and other similar activities, in assistance and services and charitable grants. 55
During the period of committee amendments, the Committee on Socio- conducting of sweepstakes
Economic Planning and Development, through Assemblyman Ronaldo B. races, lotteries and other
Zamora, introduced an amendment by substitution to the said paragraph B similar acts.
such that, as amended, it should read as follows:
MR. ZAMORA.
Subject to the approval of the Minister of Human
Settlements, to engage in health-oriented investments, We accept the amendment, Mr. Speaker.
programs, projects and activities which may be profit-
oriented, by itself or in collaboration, association, or joint
MR. DAVIDE.
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 Thank you, Mr. Speaker.
programs, including the expansion of existing ones, medical
assistance and services and/or charitable grants. 56 THE SPEAKER.

Before the motion of Assemblyman Zamora for the approval of the Is there any objection to the
amendment could be acted upon, Assemblyman Davide introduced an amendment? (Silence) The
amendment to the amendment: amendment, as amended,
is approved. 57
MR. DAVIDE.
Further amendments to paragraph B were introduced and approved. When
Mr. Speaker. 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 SPEAKER.
the amendment introduced by Assemblyman Emmanuel Pelaez, the word
PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez
The gentleman from Cebu is recognized. introduced other amendments. Thereafter, the new paragraph B was
approved. 58
MR. DAVIDE.
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P.
May I introduce an Blg. 42.
amendment to the
committee amendment? No interpretation of the said provision to relax or circumvent the prohibition
The amendment would be can be allowed since the privilege to hold or conduct charity sweepstakes
to insert after "foreign" in races, lotteries, or other similar activities is a franchise granted by the
the amendment just read legislature to the PCSO. It is a settled rule that "in all grants by the
the following: EXCEPT FOR government to individuals or corporations of rights, privileges and franchises,
THE ACTIVITY IN LETTER the words are to be taken most strongly against the grantee .... [o]ne who
(A) ABOVE. 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
When it is joint venture or in expressed, and he cannot enlarge it by equivocal or doubtful provisions or by
collaboration with any entity probable inferences. Whatever is not unequivocally granted is withheld.
such collaboration or joint Nothing passes by mere implication." 59
venture must not include
activity activity letter (a)
which is the holding and
In short then, by the exception explicitly made in paragraph B, Section 1 of its Collaboration is defined as the acts of working together in a joint project. 63
charter, the PCSO cannot share its franchise with another by way of Association means the act of a number of persons in uniting together for
collaboration, association or joint venture. Neither can it assign, transfer, or some special purpose or business. 64 Joint venture is defined as an
lease such franchise. It has been said that "the rights and privileges association of persons or companies jointly undertaking some commercial
conferred under a franchise may, without doubt, be assigned or transferred enterprise; generally all contribute assets and share risks. It requires a
when the grant is to the grantee and assigns, or is authorized by statute. On community of interest in the performance of the subject matter, a right to
the other hand, the right of transfer or assignment may be restricted by direct and govern the policy in connection therewith, and duty, which may be
statute or the constitution, or be made subject to the approval of the grantor altered by agreement to share both in profit and
or a governmental agency, such as a public utilities commission, exception losses.65
that an existing right of assignment cannot be impaired by subsequent
legislation." 60 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
It may also be pointed out that the franchise granted to the PCSO to hold and an on-line lottery system, and that although it wished to have the system, it
conduct lotteries allows it to hold and conduct a species of gambling. It is would have it "at no expense or risks to the government." Because of these
settled that "a statute which authorizes the carrying on of a gambling activity serious constraints and unwillingness to bear expenses and assume risks,
or business should be strictly construed and every reasonable doubt so the PCSO was candid enough to state in its RFP that it is seeking for "a
resolved as to limit the powers and rights claimed under its authority." 61 suitable contractor which shall build, at its own expense, all the facilities
needed to operate and maintain" the system; exclusively bear "all capital,
Does the challenged Contract of Lease violate or contravene the exception in operating expenses and expansion expenses and risks"; and submit "a
Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the comprehensive nationwide lottery development plan . . . which will include
PCSO from holding and conducting lotteries "in collaboration, association or the game, the marketing of the games, and the logistics to introduce the
joint venture with" another? 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
We agree with the petitioners that it does, notwithstanding its denomination
or designation as a (Contract of Lease). We are neither convinced nor moved and controlled agency. The facilities referred to means "all capital equipment,
computers, terminals, software, nationwide telecommunications network,
or fazed by the insistence and forceful arguments of the PGMC that it does
ticket sales offices, furnishings and fixtures, printing costs, costs of salaries
not because in reality it is only an independent contractor for a piece of work,
and wages, advertising and promotions expenses, maintenance costs,
i.e., the building and maintenance of a lottery system to be used by the
expansion and replacement costs, security and insurance, and all other
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 related expenses needed to operate a nationwide on-line lottery system."
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 In short, the only contribution the PCSO would have is its franchise or
provisions of the contract itself. Animus hominis est anima scripti. The authority to operate the on-line lottery system; with the rest, including the
intention of the party is the soul of the instrument. In order to give life or risks of the business, being borne by the proponent or bidder. It could be for
effect to an instrument, it is essential to look to the intention of the individual this reason that it warned that "the proponent must be able to stand to the
who executed it. 62 And, pursuant to Article 1371 of the Civil Code, "to acid test of proving that it is an entity able to take on the role of responsible
determine the intention of the contracting parties, their contemporaneous and maintainer of the on-line lottery system." The PCSO, however, makes it clear
subsequent acts shall be principally considered." To put it more bluntly, no in its RFP that the proponent can propose a period of the contract which shall
one should be deceived by the title or designation of a contract. 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
A careful analysis and evaluation of the provisions of the contract and a 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
consideration of the contemporaneous acts of the PCSO and PGMC
organized the PGMC as "a medium through which the technical and
indubitably disclose that the contract is not in reality a contract of lease under
management services required for the project would be offered and delivered
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, to PCSO." 66
or joint venture, at the most, exists between the contracting parties.
Undoubtedly, then, the Berjaya Group Berhad knew all along that in managers, technicians or employees of the PCSO, but of the PGMC and that
connection with an on-line lottery system, the PCSO had nothing but its it is only after the expiration of the contract that the PCSO will operate the
franchise, which it solemnly guaranteed it had in the General Information of system. After eight years, the PCSO would automatically become the owner
the RFP. 67 Howsoever viewed then, from the very inception, the PCSO and of the Facilities without any other further consideration.
the PGMC mutually understood that any arrangement between them would
necessarily leave to the PGMC the technical, operations, and management For these reasons, too, the PGMC has the initial prerogative to prepare the
aspects of the on-line lottery system while the PCSO would, primarily, detailed plan of all games and the marketing thereof, and determine the
provide the franchise. The words Gaming and Management in the corporate number of players, value of winnings, and the logistics required to introduce
name of respondent Philippine Gaming Management Corporation could not the games, including the Master Games Plan. Of course, the PCSO has the
have been conceived just for euphemistic purposes. Of course, the RFP reserved authority to disapprove them. 68 And, while the PCSO has the sole
cannot substitute for the Contract of Lease which was subsequently responsibility over the appointment of dealers and retailers throughout the
executed by the PCSO and the PGMC. Nevertheless, the Contract of Lease country, the PGMC may, nevertheless, recommend for appointment dealers
incorporates their intention and understanding. 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
The so-called Contract of Lease is not, therefore, what it purports to be. Its and retailers in respect of equipment supplied by it.
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 This joint venture is further established by the following:
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 (a) Rent is defined in the lease contract as the amount to be paid to the
of Lease. It is outstanding for its careful and meticulous drafting designed to PGMC as compensation for the fulfillment of its obligations under the
give an immediate impression that it is a contract of lease. Yet, woven contract, including, but not limited to the lease of the Facilities. However, this
therein are provisions which negate its title and betray the true intention of rent is not actually a fixed amount. Although it is stated to be 4.9% of gross
the parties to be in or to have a joint venture for a period of eight years in the
receipts from ticket sales, payable net of taxes required by law to be
operation and maintenance of the on-line lottery system.
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
Consistent with the above observations on the RFP, the PCSO has only its the revenue from the ticket sales, on an annualized basis, are insufficient to
franchise to offer, while the PGMC represents and warrants that it has pay the entire prize money." This risk-bearing provision is unusual in a
access to all managerial and technical expertise to promptly and effectively lessor-lessee relationship, but inherent in a joint venture.
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
(b) In the event of pre-termination of the contract by the PCSO, or its
necessary, upgrade, replace, and improve them from time to time as new
suspension of operation of the on-line lottery system in breach of the contract
technology develops to make the on-line lottery system more cost-effective
and through no fault of the PGMC, the PCSO binds itself "to promptly, and in
and competitive; exclusively bear all costs and expenses relating to the
any event not later than sixty (60) days, reimburse the Lessor the amount of
printing, manpower, salaries and wages, advertising and promotion,
its total investment cost associated with the On-Line Lottery System,
maintenance, expansion and replacement, security and insurance, and all including but not limited to the cost of the Facilities, and further compensate
other related expenses needed to operate the on-line lottery system; the LESSOR for loss of expected net profit after tax, computed over the
undertake a positive advertising and promotions campaign for both
unexpired term of the lease." If the contract were indeed one of lease, the
institutional and product lines without engaging in negative advertising
payment of the expected profits or rentals for the unexpired portion of the
against other lessors; bear the salaries and related costs of skilled and
term of the contract would be enough.
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 (c) The PGMC cannot "directly or indirectly undertake any activity or
expertise, such that at the end of the term of the contract, the PCSO will be business in competition with or adverse to the On-Line Lottery System of
able to effectively take over the Facilities and efficiently operate the on-line PCSO unless it obtains the latter's prior written consent." If the PGMC is
lottery system. The latter simply means that, indeed, the managers, engaged in the business of leasing equipment and technology for an on-line
technicians or employees who shall operate the on-line lottery system are not
lottery system, we fail to see any acceptable reason why it should allow a We thus declare that the challenged Contract of Lease violates the exception
restriction on the pursuit of such business. 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
(d) The PGMC shall provide the PCSO the audited Annual Report sent to its renders unnecessary further discussion on the other issues raised by the
stockholders, and within two years from the effectivity of the contract, cause petitioners.
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 WHEREFORE, the instant petition is hereby GRANTED and the challenged
unreasonable and whimsical, and could only be tied up to the fact that the Contract of Lease executed on 17 December 1993 by respondent Philippine
PGMC will actually operate and manage the system; hence, increasing Charity Sweepstakes Office (PCSO) and respondent Philippine Gaming
public participation in the corporation would enhance public interest. Management Corporation (PGMC) is hereby DECLARED contrary to law and
invalid.
(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 The Temporary Restraining Order issued on 11 April 1994 is hereby MADE
initial performance bond required to ensure its faithful compliance with the PERMANENT.
terms of the contract.
No pronouncement as to costs.
(f) The PCSO shall designate the necessary personnel to monitor and audit
the daily performance of the on-line lottery system; and promulgate SO ORDERED.
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 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.
FRANCISCO VS NAGMAMALASAKIT 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
There can be no constitutional crisis arising from a conflict, no matter how the people. Verily, salus populi est suprema lex.
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature, Article XI of our present 1987 Constitution provides:
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution. ARTICLE XI

Our nation's history is replete with vivid illustrations of the often frictional, at Accountability of Public Officers
times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the SECTION 1. Public office is a public trust. Public officers and
legislature and the judiciary which has drawn legal luminaries to chart employees must at all times be accountable to the people, serve
antipodal courses and not a few of our countrymen to vent cacophonous them with utmost responsibility, integrity, loyalty, and efficiency, act
sentiments thereon. with patriotism and justice, and lead modest lives.

There may indeed be some legitimacy to the characterization that the SECTION 2. The President, the Vice-President, the Members of the
present controversy subject of the instant petitions whether the filing of the Supreme Court, the Members of the Constitutional Commissions,
second impeachment complaint against Chief Justice Hilario G. Davide, Jr. and the Ombudsman may be removed from office, on impeachment
with the House of Representatives falls within the one year bar provided in for, and conviction of, culpable violation of the Constitution, treason,
the Constitution, and whether the resolution thereof is a political question bribery, graft and corruption, other high crimes, or betrayal of public
has resulted in a political crisis. Perhaps even more truth to the view that it trust. All other public officers and employees may be removed from
was brought upon by a political crisis of conscience. office as provided by law, but not by impeachment.

In any event, it is with the absolute certainty that our Constitution is sufficient SECTION 3. (1) The House of Representatives shall have the
to address all the issues which this controversy spawns that this Court exclusive power to initiate all cases of impeachment.
unequivocally pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither necessary nor legally
(2) A verified complaint for impeachment may be filed by any
permissible. Both its resolution and protection of the public interest lie in
Member of the House of Representatives or by any citizen upon a
adherence to, not departure from, the Constitution.
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
In passing over the complex issues arising from the controversy, this Court is referred to the proper Committee within three session days
ever mindful of the essential truth that the inviolate doctrine of separation of thereafter. The Committee, after hearing, and by a majority vote of all
powers among the legislative, executive or judicial branches of government its Members, shall submit its report to the House within sixty session
by no means prescribes for absolute autonomy in the discharge by each of days from such referral, together with the corresponding resolution.
that part of the governmental power assigned to it by the sovereign people. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
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 (3) A vote of at least one-third of all the Members of the House shall
each of these three branches must be given effect without destroying their be necessary either to affirm a favorable resolution with the Articles
indispensable co-equality. of Impeachment of the Committee, or override its contrary resolution.
The vote of each Member shall be recorded.
Taken together, these two fundamental doctrines of republican government,
intended as they are to insure that governmental power is wielded only for
(4) In case the verified complaint or resolution of impeachment is
any Member of the House of In cases where a Member of the
filed by at least one-third of all the Members of the House, the same
Representatives or by any citizen House files a verified complaint of
shall constitute the Articles of Impeachment, and trial by the Senate
upon a resolution of endorsement by impeachment or a citizen files a
shall forthwith proceed.
any Member thereof or by a verified verified complaint that is endorsed
complaint or resolution of by a Member of the House through a
(5) No impeachment proceedings shall be initiated against the impeachment filed by at least one- resolution of endorsement against
same official more than once within a period of one year. third (1/3) of all the Members of the an impeachable officer,
House. impeachment proceedings against
(6) The Senate shall have the sole power to try and decide all cases such official are deemed initiated on
of impeachment. When sitting for that purpose, the Senators shall be the day the Committee on Justice
on oath or affirmation. When the President of the Philippines is on finds that the verified complaint
trial, the Chief Justice of the Supreme Court shall preside, but shall and/or resolution against such
not vote. No person shall be convicted without the concurrence of official, as the case may be, is
two-thirds of all the Members of the Senate. sufficient in substance, or on the
date the House votes to overturn or
(7) Judgment in cases of impeachment shall not extend further than affirm the finding of the said
removal from office and disqualification to hold any office under the Committee that the verified
Republic of the Philippines, but the party convicted shall complaint and/or resolution, as the
nevertheless be liable and subject to prosecution, trial, and case may be, is not sufficient in
punishment according to law. substance.

(8) The Congress shall promulgate its rules on impeachment to In cases where a verified complaint
effectively carry out the purpose of this section. (Emphasis and or a resolution of impeachment is
underscoring supplied) filed or endorsed, as the case may
be, by at least one-third (1/3) of the
Following the above-quoted Section 8 of Article XI of the Constitution, the Members of the House,
12th Congress of the House of Representatives adopted and approved the impeachment proceedings are
Rules of Procedure in Impeachment Proceedings (House Impeachment deemed initiated at the time of the
Rules) on November 28, 2001, superseding the previous House filing of such verified complaint or
Impeachment Rules1 approved by the 11th Congress. The relevant resolution of impeachment with
distinctions between these two Congresses' House Impeachment Rules are the Secretary General.
shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES RULE V Section 17. Bar Against Initiation
Of Impeachment Proceedings.
BAR AGAINST IMPEACHMENT Within a period of one (1) year from
RULE II RULE V
the date impeachment proceedings
Section 14. Scope of Bar. No are deemed initiated as provided in
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF Section 16 hereof, no impeachment
IMPEACHMENT PROCEEDINGS impeachment proceedings shall be
proceedings, as such, can be
AGAINST THE SAME OFFICIAL initiated against the same official more
Section 2. Mode of Initiating initiated against the same official.
than once within the period of one (1)
Impeachment. Impeachment shall (Italics in the original; emphasis and
year.
be initiated only by a verified Section 16. Impeachment underscoring supplied)
complaint for impeachment filed by Proceedings Deemed Initiated.
On July 22, 2002, the House of Representatives adopted a Resolution,2 complaint is unconstitutional as it violates the provision of Section 5 of Article
sponsored by Representative Felix William D. Fuentebella, which directed XI of the Constitution that "[n]o impeachment proceedings shall be initiated
the Committee on Justice "to conduct an investigation, in aid of legislation, against the same official more than once within a period of one year."
on the manner of disbursements and expenditures by the Chief Justice of the
Supreme Court of the Judiciary Development Fund (JDF)."3 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
On June 2, 2003, former President Joseph E. Estrada filed an impeachment available legal remedies to stop an unconstitutional impeachment, that the
complaint4 (first impeachment complaint) against Chief Justice Hilario G. issues raised in his petition for Certiorari, Prohibition and Mandamus are of
Davide Jr. and seven Associate Justices5 of this Court for "culpable violation transcendental importance, and that he "himself was a victim of the
of the Constitution, betrayal of the public trust and other high crimes."6 The capricious and arbitrary changes in the Rules of Procedure in Impeachment
complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Proceedings introduced by the 12th Congress,"14 posits that his right to bring
Zamora and Didagen Piang Dilangalen,7 and was referred to the House an impeachment complaint against then Ombudsman Aniano Desierto had
Committee on Justice on August 5, 20038 in accordance with Section 3(2) of been violated due to the capricious and arbitrary changes in the House
Article XI of the Constitution which reads: 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
Section 3(2) A verified complaint for impeachment may be filed by Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2)
any Member of the House of Representatives or by any citizen upon this Court issue a writ of mandamus directing respondents House of
a resolution of endorsement by any Member thereof, which shall be Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of
included in the Order of Business within ten session days, and the Constitution, to return the second impeachment complaint and/or strike it
referred to the proper Committee within three session days off the records of the House of Representatives, and to promulgate rules
thereafter. The Committee, after hearing, and by a majority vote of all which are consistent with the Constitution; and (3) this Court permanently
its Members, shall submit its report to the House within sixty session enjoin respondent House of Representatives from proceeding with the
days from such referral, together with the corresponding resolution. second impeachment complaint.
The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof. 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
The House Committee on Justice ruled on October 13, 2003 that the first importance, pray, in their petition for Certiorari/Prohibition, the issuance of a
impeachment complaint was "sufficient in form,"9 but voted to dismiss the writ "perpetually" prohibiting respondent House of Representatives from filing
same on October 22, 2003 for being insufficient in substance.10 To date, the any Articles of Impeachment against the Chief Justice with the Senate; and
Committee Report to this effect has not yet been sent to the House in plenary for the issuance of a writ "perpetually" prohibiting respondents Senate and
in accordance with the said Section 3(2) of Article XI of the Constitution. 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.
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 In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
with the Secretary General of the House12 by Representatives Gilberto C. Cagampang, as citizens, taxpayers, lawyers and members of the Integrated
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third Bar of the Philippines, alleging that their petition for Prohibition involves
District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded public interest as it involves the use of public funds necessary to conduct the
on the alleged results of the legislative inquiry initiated by above-mentioned impeachment trial on the second impeachment complaint, pray for the
House Resolution. This second impeachment complaint was accompanied issuance of a writ of prohibition enjoining Congress from conducting further
by a "Resolution of Endorsement/Impeachment" signed by at least one-third proceedings on said second impeachment complaint.
(1/3) of all the Members of the House of Representatives.13
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court
Thus arose the instant petitions against the House of Representatives, et. al., has recognized that he has locus standi to bring petitions of this nature in the
most of which petitions contend that the filing of the second impeachment cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for Injunction that the In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
second impeachment complaint be declared unconstitutional. it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
and members of the legal profession, pray in their petition for Prohibition for Impeachment Rules be declared unconstitutional and that the House of
an order prohibiting respondent House of Representatives from drafting, Representatives be permanently enjoined from proceeding with the second
adopting, approving and transmitting to the Senate the second impeachment impeachment complaint.
complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his
petition for Certiorari and Prohibition that the House Impeachment Rules be
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and declared unconstitutional.
Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House
of Representatives, they have a legal interest in ensuring that only In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et.
constitutional impeachment proceedings are initiated, pray in their petition for al., in their petition for Prohibition and Injunction which they claim is a class
Certiorari/Prohibition that the second impeachment complaint and any act suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in
proceeding therefrom be declared null and void. behalf of succeeding generations of Filipinos, pray for the issuance of a writ
prohibiting respondents House of Representatives and the Senate from
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they conducting further proceedings on the second impeachment complaint and
have a right to be protected against all forms of senseless spending of that this Court declare as unconstitutional the second impeachment
taxpayers' money and that they have an obligation to protect the Supreme complaint and the acts of respondent House of Representatives in interfering
Court, the Chief Justice, and the integrity of the Judiciary, allege in their with the fiscal matters of the Judiciary.
petition for Certiorari and Prohibition that it is instituted as "a class suit" and
pray that (1) the House Resolution endorsing the second impeachment In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
complaint as well as all issuances emanating therefrom be declared null and alleging that the issues in his petition for Prohibition are of national and
void; and (2) this Court enjoin the Senate and the Senate President from transcendental significance and that as an official of the Philippine Judicial
taking cognizance of, hearing, trying and deciding the second impeachment Academy, he has a direct and substantial interest in the unhampered
complaint, and issue a writ of prohibition commanding the Senate, its operation of the Supreme Court and its officials in discharging their duties in
prosecutors and agents to desist from conducting any proceedings or to act accordance with the Constitution, prays for the issuance of a writ prohibiting
on the impeachment complaint. the House of Representatives from transmitting the Articles of Impeachment
to the Senate and the Senate from receiving the same or giving the
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members impeachment complaint due course.
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, In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in
which does not state what its nature is, that the filing of the second his petition for Prohibition that respondents Fuentebella and Teodoro at the
impeachment complaint involves paramount public interest and pray that time they filed the second impeachment complaint, were "absolutely without
Sections 16 and 17 of the House Impeachment Rules and the second any legal power to do so, as they acted without jurisdiction as far as the
impeachment complaint/Articles of Impeachment be declared null and void. Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
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 In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray Hofilea, alleging that as professors of law they have an abiding interest in
in their petition for the issuance of a Temporary Restraining Order and the subject matter of their petition for Certiorari and Prohibition as it pertains
Permanent Injunction to enjoin the House of Representatives from to a constitutional issue "which they are trying to inculcate in the minds of
proceeding with the second impeachment complaint. their students," pray that the House of Representatives be enjoined from
endorsing and the Senate from trying the Articles of Impeachment and that separation of powers and is a direct violation of the constitutional principle of
the second impeachment complaint be declared null and void. fiscal autonomy of the judiciary.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging On October 28, 2003, during the plenary session of the House of
his locus standi, but alleging that the second impeachment complaint is Representatives, a motion was put forth that the second impeachment
founded on the issue of whether or not the Judicial Development Fund (JDF) complaint be formally transmitted to the Senate, but it was not carried
was spent in accordance with law and that the House of Representatives because the House of Representatives adjourned for lack of quorum,19 and
does not have exclusive jurisdiction in the examination and audit thereof, as reflected above, to date, the Articles of Impeachment have yet to be
prays in his petition "To Declare Complaint Null and Void for Lack of Cause forwarded to the Senate.
of Action and Jurisdiction" that the second impeachment complaint be
declared null and void. 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,
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the 2003, Justices Puno and Vitug offered to recuse themselves, but the Court
issues raised in the filing of the second impeachment complaint involve rejected their offer. Justice Panganiban inhibited himself, but the Court
matters of transcendental importance, prays in its petition for directed him to participate.
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent Without necessarily giving the petitions due course, this Court in its
House of Representatives be prohibited from transmitting the Articles of Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b)
Impeachment to the Senate; and (3) respondent Senate be prohibited from require respondent House of Representatives and the Senate, as well as the
accepting the Articles of Impeachment and from conducting any proceedings Solicitor General, to comment on the petitions not later than 4:30 p.m. of
thereon. 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
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and curiae.20 In addition, this Court called on petitioners and respondents to
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second maintain the status quo, enjoining all the parties and others acting for and in
impeachment complaint as well as the resolution of endorsement and their behalf to refrain from committing acts that would render the petitions
impeachment by the respondent House of Representatives be declared null moot.
and void and (2) respondents Senate and Senate President Franklin Drilon
be prohibited from accepting any Articles of Impeachment against the Chief Also on October 28, 2003, when respondent House of Representatives
Justice or, in the event that they have accepted the same, that they be through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way
prohibited from proceeding with the impeachment trial. of special appearance, submitted a Manifestation asserting that this Court
has no jurisdiction to hear, much less prohibit or enjoin the House of
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, Representatives, which is an independent and co-equal branch of
the first three of the eighteen which were filed before this Court,18 prayed for government under the Constitution, from the performance of its
the issuance of a Temporary Restraining Order and/or preliminary injunction constitutionally mandated duty to initiate impeachment cases. On even date,
to prevent the House of Representatives from transmitting the Articles of Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to
Impeachment arising from the second impeachment complaint to the Senate. Intervene (Ex Abudante Cautela)21 and Comment, praying that "the
Petition bearing docket number G.R. No. 160261 likewise prayed for the consolidated petitions be dismissed for lack of jurisdiction of the Court over
declaration of the November 28, 2001 House Impeachment Rules as null and the issues affecting the impeachment proceedings and that the sole power,
void for being unconstitutional. 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
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, respondent, be recognized and upheld pursuant to the provisions of Article XI
which were filed on October 28, 2003, sought similar relief. In addition, of the Constitution."22
petition bearing docket number G.R. No. 160292 alleged that House
Resolution No. 260 (calling for a legislative inquiry into the administration by Acting on the other petitions which were subsequently filed, this Court
the Chief Justice of the JDF) infringes on the constitutional doctrine of 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 In discussing these issues, the following may be taken up:
November 3, 2003; and (c) include them for oral arguments on November 5,
2003. a) locus standi of petitioners;

On October 29, 2003, the Senate of the Philippines, through Senate b) ripeness(prematurity; mootness);
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 c) political question/justiciability;
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 d) House's "exclusive" power to initiate all cases of
Articles of Impeachment, which it had not, and (2) the principal issues raised impeachment;
by the petitions pertain exclusively to the proceedings in the House of
Representatives. e) Senate's "sole" power to try and decide all cases of
impeachment;
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and f) constitutionality of the House Rules on Impeachment vis-a-
160295, questioning the status quo Resolution issued by this Court on vis Section 3(5) of Article XI of the Constitution; and
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 g) judicial restraint (Italics in the original)
all the petitions as the matter in question is not yet ripe for judicial
determination. In resolving the intricate conflux of preliminary and substantive issues arising
from the instant petitions as well as the myriad arguments and opinions
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino presented for and against the grant of the reliefs prayed for, this Court has
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene sifted and determined them to be as follows: (1) the threshold and novel
and to Admit the Herein Incorporated Petition in Intervention." issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga requisites for the exercise of the power of judicial review have been fulfilled;
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. and (3) the substantive issues yet remaining. These matters shall now be
160261. On November 5, 2003, World War II Veterans Legionnaires of the discussed in seriatim.
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene"
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and Judicial Review
160310.
As reflected above, petitioners plead for this Court to exercise the power of
The motions for intervention were granted and both Senator Pimentel's judicial review to determine the validity of the second impeachment
Comment and Attorneys Macalintal and Quadra's Petition in Intervention complaint.
were admitted.
This Court's power of judicial review is conferred on the judicial branch of the
On November 5-6, 2003, this Court heard the views of the amici curiae and government in Section 1, Article VIII of our present 1987 Constitution:
the arguments of petitioners, intervenors Senator Pimentel and Attorney
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues SECTION 1. The judicial power shall be vested in one Supreme
outlined in an Advisory issued by this Court on November 3, 2003, to wit: Court and in such lower courts as may be established by law.

Whether the certiorari jurisdiction of the Supreme Court may be Judicial power includes the duty of the courts of justice to settle
invoked; who can invoke it; on what issues and at what time; and actual controversies involving rights which are legally demandable
whether it should be exercised by this Court at this time. and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of The Constitution is a definition of the powers of government. Who is
jurisdiction on the part of any branch or instrumentality of the to determine the nature, scope and extent of such powers? The
government. (Emphasis supplied) Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates
Such power of judicial review was early on exhaustively expounded upon by to allocate constitutional boundaries, it does not assert any
Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral superiority over the other departments; it does not in reality nullify or
Commission23 after the effectivity of the 1935 Constitution whose provisions, invalidate an act of the legislature, but only asserts the solemn and
unlike the present Constitution, did not contain the present provision in Article sacred obligation assigned to it by the Constitution to
VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel determine conflicting claims of authority under the Constitution
discoursed: 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
x x x In times of social disquietude or political excitement, the great
supremacy" which properly is the power of judicial review under
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the Constitution. Even then, this power of judicial review is limited
the only constitutional organ which can be called upon to to actual cases and controversies to be exercised after full
determine the proper allocation of powers between the several opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
departments and among the integral or constituent units
thereof. 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
As any human production, our Constitution is of course lacking pass upon questions of wisdom, justice or expediency of legislation.
perfection and perfectibility, but as much as it was within the power More than that, courts accord the presumption of constitutionality to
of our people, acting through their delegates to so provide, that legislative enactments, not only because the legislature is presumed
instrument which is the expression of their sovereignty however to abide by the Constitution but also because the judiciary in the
limited, has established a republican government intended to operate determination of actual cases and controversies must reflect the
and function as a harmonious whole, under a system of checks and wisdom and justice of the people as expressed through their
balances, and subject to specific limitations and restrictions provided representatives in the executive and legislative departments of the
in the said instrument. The Constitution sets forth in no uncertain government.24 (Italics in the original; emphasis and underscoring
language the restrictions and limitations upon governmental supplied)
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 As pointed out by Justice Laurel, this "moderating power" to "determine the
government along constitutional channels, for then the proper allocation of powers" of the different branches of government and "to
direct the course of government along constitutional channels" is inherent in
distribution of powers would be mere verbiage, the bill of rights mere
all courts25 as a necessary consequence of the judicial power itself, which is
expressions of sentiment, and the principles of good government
"the power of the court to settle actual controversies involving rights which
mere political apothegms. Certainly, the limitations and restrictions
embodied in our Constitution are real as they should be in any living are legally demandable and enforceable."26
constitution. In the United States where no express constitutional
grant is found in their constitution, the possession of this Thus, even in the United States where the power of judicial review is not
moderating power of the courts, not to speak of its historical origin explicitly conferred upon the courts by its Constitution, such power has "been
and development there, has been set at rest by popular set at rest by popular acquiescence for a period of more than one and a half
acquiescence for a period of more than one and a half centuries. In centuries." To be sure, it was in the 1803 leading case of Marbury v.
our case, this moderating power is granted, if not expressly, by Madison27 that the power of judicial review was first articulated by Chief
clear implication from section 2 of article VIII of our Justice Marshall, to wit:
Constitution.
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 provided for an elaborate system of checks and balances to
only which shall be made in pursuance of the constitution, have that secure coordination in the workings of the various departments
rank. of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other
Thus, the particular phraseology of the constitution of the United departments in the exercise of its power to determine the law,
States confirms and strengthens the principle, supposed to be and hence to declare executive and legislative acts void if
essential to all written constitutions, that a law repugnant to the violative of the Constitution.32 (Emphasis and underscoring
constitution is void; and that courts, as well as other supplied)
departments, are bound by that instrument.28 (Italics in the
original; emphasis supplied) In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x judicial review is essential for the maintenance and
In our own jurisdiction, as early as 1902, decades before its express grant in enforcement of the separation of powers and the balancing of powers among
the 1935 Constitution, the power of judicial review was exercised by our the three great departments of government through the definition and
courts to invalidate constitutionally infirm acts.29 And as pointed out by noted maintenance of the boundaries of authority and control between them."33 To
political law professor and former Supreme Court Justice Vicente V. him, "[j]udicial review is the chief, indeed the only, medium of participation
Mendoza,30 the executive and legislative branches of our government in fact or instrument of intervention of the judiciary in that balancing operation."34
effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit: 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-
Article 7. Laws are repealed only by subsequent ones, and their quoted Section 1, Article VIII of the Constitution engraves, for the first time
violation or non-observance shall not be excused by disuse, or into its history, into block letter law the so-called "expanded certiorari
custom or practice to the contrary. 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
When the courts declare a law to be inconsistent with the Chief Justice Constitutional Commissioner Roberto Concepcion:
Constitution, the former shall be void and the latter shall
govern. xxx

Administrative or executive acts, orders and regulations shall The first section starts with a sentence copied from former Constitutions. It
be valid only when they are not contrary to the laws or the says:
Constitution. (Emphasis supplied)
The judicial power shall be vested in one Supreme Court and in such
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an lower courts as may be established by law.
integral component of the delicate system of checks and balances which,
together with the corollary principle of separation of powers, forms the I suppose nobody can question it.
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 next provision is new in our constitutional law. I will read it first
and explain.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision but Judicial power includes the duty of courts of justice to settle actual
by actual division in our Constitution. Each department of the controversies involving rights which are legally demandable and
government has exclusive cognizance of matters within its enforceable and to determine whether or not there has been a grave
jurisdiction, and is supreme within its own sphere. But it does not abuse of discretion amounting to lack or excess of jurisdiction on the
follow from the fact that the three powers are to be kept separate and part or instrumentality of the government.
distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has
Fellow Members of this Commission, this is actually a product of Administration,36 this Court, speaking through Chief Justice Enrique
our experience during martial law. As a matter of fact, it has some Fernando, declared:
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance We look to the language of the document itself in our search for
that in a number of cases against the government, which then its meaning. We do not of course stop there, but that is where
had no legal defense at all, the solicitor general set up the we begin. It is to be assumed that the words in which
defense of political questions and got away with it. As a constitutional provisions are couched express the objective
consequence, certain principles concerning particularly the writ of sought to be attained. They are to be given their ordinary
habeas corpus, that is, the authority of courts to order the release of meaning except where technical terms are employed in which
political detainees, and other matters related to the operation and case the significance thus attached to them prevails. As the
effect of martial law failed because the government set up the Constitution is not primarily a lawyer's document, it being essential
defense of political question. And the Supreme Court said: "Well, for the rule of law to obtain that it should ever be present in the
since it is political, we have no authority to pass upon it." The people's consciousness, its language as much as possible should be
Committee on the Judiciary feels that this was not a proper understood in the sense they have in common use. What it says
solution of the questions involved. It did not merely request an according to the text of the provision to be construed compels
encroachment upon the rights of the people, but it, in effect, acceptance and negates the power of the courts to alter it, based on
encouraged further violations thereof during the martial law the postulate that the framers and the people mean what they say.
regime. x x x Thus these are the cases where the need for construction is reduced
to a minimum.37 (Emphasis and underscoring supplied)
xxx
Second, where there is ambiguity, ratio legis est anima. The words of the
Briefly stated, courts of justice determine the limits of power of Constitution should be interpreted in accordance with the intent of its
the agencies and offices of the government as well as those of framers. And so did this Court apply this principle in Civil Liberties Union v.
its officers. In other words, the judiciary is the final arbiter on Executive Secretary38 in this wise:
the question whether or not a branch of government or any of
its officials has acted without jurisdiction or in excess of A foolproof yardstick in constitutional construction is the intention
jurisdiction, or so capriciously as to constitute an abuse of underlying the provision under consideration. Thus, it has been held
discretion amounting to excess of jurisdiction or lack of that the Court in construing a Constitution should bear in mind the
jurisdiction. This is not only a judicial power but a duty to pass object sought to be accomplished by its adoption, and the evils, if
judgment on matters of this nature. 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
This is the background of paragraph 2 of Section 1, which means and circumstances under which the Constitution was framed. The
that the courts cannot hereafter evade the duty to settle matters object is to ascertain the reason which induced the framers of
of this nature, by claiming that such matters constitute a the Constitution to enact the particular provision and the
political question.35 (Italics in the original; emphasis and purpose sought to be accomplished thereby, in order to
underscoring supplied) construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.39 (Emphasis and
To determine the merits of the issues raised in the instant petitions, this underscoring supplied)
Court must necessarily turn to the Constitution itself which employs the well-
settled principles of constitutional construction. As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking
through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical x x x The ascertainment of that intent is but in keeping with the
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure 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 While it is permissible in this jurisdiction to consult the debates and
constitutional construction is to ascertain and thereafter assure the proceedings of the constitutional convention in order to arrive at the
realization of the purpose of the framers and of the people in the reason and purpose of the resulting Constitution, resort thereto
adoption of the Constitution. It may also be safely assumed that may be had only when other guides fail as said proceedings are
the people in ratifying the Constitution were guided mainly by powerless to vary the terms of the Constitution when the
the explanation offered by the framers.41 (Emphasis and meaning is clear. Debates in the constitutional convention "are of
underscoring supplied) 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
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as the views of the large majority who did not talk, much less of the
a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice mass of our fellow citizens whose votes at the polls gave that
Manuel Moran declared: 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
x x x [T]he members of the Constitutional Convention could not
have dedicated a provision of our Constitution merely for the understood by the people adopting it than in the framers's
benefit of one person without considering that it could also understanding thereof.46 (Emphasis and underscoring supplied)
affect others. When they adopted subsection 2, they permitted,
if not willed, that said provision should function to the full It is in the context of the foregoing backdrop of constitutional refinement and
extent of its substance and its terms, not by itself alone, but in jurisprudential application of the power of judicial review that respondents
conjunction with all other provisions of that great document. 43 Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel
(Emphasis and underscoring supplied) argument that the Constitution has excluded impeachment proceedings from
the coverage of judicial review.
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that: Briefly stated, it is the position of respondents Speaker De Venecia et. al.
that impeachment is a political action which cannot assume a judicial
It is a well-established rule in constitutional construction that character. Hence, any question, issue or incident arising at any stage of the
no one provision of the Constitution is to be separated from all impeachment proceeding is beyond the reach of judicial review.47
the others, to be considered alone, but that all the provisions
bearing upon a particular subject are to be brought into view For his part, intervenor Senator Pimentel contends that the Senate's "sole
and to be so interpreted as to effectuate the great purposes of power to try" impeachment cases48 (1) entirely excludes the application of
the instrument. Sections bearing on a particular subject should judicial review over it; and (2) necessarily includes the Senate's power to
be considered and interpreted together as to effectuate the determine constitutional questions relative to impeachment proceedings. 49
whole purpose of the Constitution and one section is not to be
allowed to defeat another, if by any reasonable construction, In furthering their arguments on the proposition that impeachment
the two can be made to stand together. proceedings are outside the scope of judicial review, respondents Speaker
De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American
In other words, the court must harmonize them, if practicable, and authorities, principally the majority opinion in the case of Nixon v. United
must lean in favor of a construction which will render every word States.50 Thus, they contend that the exercise of judicial review over
operative, rather than one which may make the words idle and impeachment proceedings is inappropriate since it runs counter to the
nugatory.45 (Emphasis supplied) 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
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. create a lack of finality and difficulty in fashioning relief. 51 Respondents
Executive Secretary, this Court expounded: 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 statesmanship on the principle that "whenever possible, the Court should
American Constitution and American authorities cannot be credited to defer to the judgment of the people expressed legislatively, recognizing full
support the proposition that the Senate's "sole power to try and decide well the perils of judicial willfulness and pride."56
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all But did not the people also express their will when they instituted the above-
issues pertaining to impeachment to the legislature, to the total exclusion of mentioned safeguards in the Constitution? This shows that the Constitution
the power of judicial review to check and restrain any grave abuse of the did not intend to leave the matter of impeachment to the sole discretion of
impeachment process. Nor can it reasonably support the interpretation that it Congress. Instead, it provided for certain well-defined limits, or in the
necessarily confers upon the Senate the inherently judicial power to language of Baker v. Carr,57 "judicially discoverable standards" for
determine constitutional questions incident to impeachment proceedings. determining the validity of the exercise of such discretion, through the power
of judicial review.
Said American jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
within our jurisdiction and have only limited persuasive merit insofar as respondents in support of the argument that the impeachment power is
Philippine constitutional law is concerned. As held in the case of Garcia vs. beyond the scope of judicial review, are not in point. These cases concern
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be the denial of petitions for writs of mandamus to compel the legislature to
beguiled by foreign jurisprudence some of which are hardly applicable perform non-ministerial acts, and do not concern the exercise of the power of
because they have been dictated by different constitutional settings and judicial review.
needs."53 Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since There is indeed a plethora of cases in which this Court exercised the power
diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical of judicial review over congressional action. Thus, in Santiago v. Guingona,
cord." 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 major difference between the judicial power of the Philippine Supreme the Constitution or grave abuse of discretion in the exercise of their functions
Court and that of the U.S. Supreme Court is that while the power of judicial and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the
review is only impliedly granted to the U.S. Supreme Court and is Philippine Senate on the ground that it contravened the Constitution, it held
discretionary in nature, that granted to the Philippine Supreme Court and that the petition raises a justiciable controversy and that when an action of
lower courts, as expressly provided for in the Constitution, is not just a power the legislative branch is seriously alleged to have infringed the Constitution, it
but also a duty, and it was given an expanded definition to include the becomes not only the right but in fact the duty of the judiciary to settle the
power to correct any grave abuse of discretion on the part of any government dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution
branch or instrumentality. of the House of Representatives withdrawing the nomination, and rescinding
the election, of a congressman as a member of the House Electoral Tribunal
There are also glaring distinctions between the U.S. Constitution and the for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Philippine Constitution with respect to the power of the House of Mitra,63 it held that the resolution of whether the House representation in the
Representatives over impeachment proceedings. While the U.S. Constitution Commission on Appointments was based on proportional representation of
bestows sole power of impeachment to the House of Representatives without the political parties as provided in Section 18, Article VI of the Constitution is
limitation,54 our Constitution, though vesting in the House of Representatives subject to judicial review. In Daza v. Singson,64 it held that the act of the
the exclusive power to initiate impeachment cases,55 provides for several House of Representatives in removing the petitioner from the Commission on
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
and (5), Article XI thereof. These limitations include the manner of filing, although under the Constitution, the legislative power is vested exclusively in
required vote to impeach, and the one year bar on the impeachment of one Congress, this does not detract from the power of the courts to pass upon
and the same official. the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the
Respondents are also of the view that judicial review of impeachments election of any member, irrespective of whether his election is contested, is
undermines their finality and may also lead to conflicts between Congress not essential before such member-elect may discharge the duties and enjoy
and the judiciary. Thus, they call upon this Court to exercise judicial the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the Intervenor Soriano, in praying for the dismissal of the petitions, contends that
exercise of judicial review over impeachment proceedings would upset the petitioners do not have standing since only the Chief Justice has sustained
system of checks and balances. Verily, the Constitution is to be interpreted and will sustain direct personal injury. Amicus curiae former Justice Minister
as a whole and "one section is not to be allowed to defeat another." 67 Both and Solicitor General Estelito Mendoza similarly contends.
are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the Upon the other hand, the Solicitor General asserts that petitioners have
powers assigned to it by the Constitution. standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
Essential Requisites for Judicial Review interest70 and transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of
As clearly stated in Angara v. Electoral Commission, the courts' power of the government have kept themselves within the limits of the Constitution
judicial review, like almost all powers conferred by the Constitution, is subject and the laws and that they have not abused the discretion given to them. 72
to several limitations, namely: (1) an actual case or controversy calling for the Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the
exercise of judicial power; (2) the person challenging the act must have same opinion, citing transcendental importance and the well-entrenched rule
"standing" to challenge; he must have a personal and substantial interest in exception that, when the real party in interest is unable to vindicate his rights
the case such that he has sustained, or will sustain, direct injury as a result of by seeking the same remedies, as in the case of the Chief Justice who, for
its enforcement; (3) the question of constitutionality must be raised at the ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
earliest possible opportunity; and (4) the issue of constitutionality must be the will grant petitioners standing.
very lis mota of the case.
There is, however, a difference between the rule on real-party-in-interest and
x x x Even then, this power of judicial review is limited to actual the rule on standing, for the former is a concept of civil procedure73 while the
cases and controversies to be exercised after full opportunity of latter has constitutional underpinnings.74 In view of the arguments set forth
argument by the parties, and limited further to the constitutional regarding standing, it behooves the Court to reiterate the ruling in
question raised or the very lis mota presented. Any attempt at Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
abstraction could only lead to dialectics and barren legal questions distinguish it from real party-in-interest.
and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon questions The difference between the rule on standing and real party in interest
of wisdom, justice or expediency of legislation. More than that, courts has been noted by authorities thus: "It is important to note . . . that
accord the presumption of constitutionality to legislative enactments, standing because of its constitutional and public policy
not only because the legislature is presumed to abide by the underpinnings, is very different from questions relating to whether a
Constitution but also because the judiciary in the determination of particular plaintiff is the real party in interest or has capacity to sue.
actual cases and controversies must reflect the wisdom and justice Although all three requirements are directed towards ensuring that
of the people as expressed through their representatives in the only certain parties can maintain an action, standing restrictions
executive and legislative departments of the government.68 (Italics in require a partial consideration of the merits, as well as broader policy
the original) concerns relating to the proper role of the judiciary in certain areas.

Standing Standing is a special concern in constitutional law because in some


cases suits are brought not by parties who have been personally
Locus standi or legal standing or has been defined as a personal and injured by the operation of a law or by official action taken, but by
substantial interest in the case such that the party has sustained or will concerned citizens, taxpayers or voters who actually sue in the
sustain direct injury as a result of the governmental act that is being public interest. Hence the question in standing is whether such
challenged. The gist of the question of standing is whether a party alleges parties have "alleged such a personal stake in the outcome of the
such personal stake in the outcome of the controversy as to assure that controversy as to assure that concrete adverseness which sharpens
concrete adverseness which sharpens the presentation of issues upon which the presentation of issues upon which the court so largely depends
the court depends for illumination of difficult constitutional questions.69 for illumination of difficult constitutional questions."
xxx to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
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 As for a legislator, he is allowed to sue to question the validity of any official
judgment, or the 'party entitled to the avails of the suit.'"76 (Citations action which he claims infringes his prerogatives as a legislator.82 Indeed, a
omitted) member of the House of Representatives has standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in his
While rights personal to the Chief Justice may have been injured by the office.83
alleged unconstitutional acts of the House of Representatives, none of the
petitioners before us asserts a violation of the personal rights of the Chief While an association has legal personality to represent its members,84
Justice. On the contrary, they invariably invoke the vindication of their own especially when it is composed of substantial taxpayers and the outcome will
rights as taxpayers; members of Congress; citizens, individually or in a affect their vital interests,85 the mere invocation by the Integrated Bar of the
class suit; and members of the bar and of the legal profession which were Philippines or any member of the legal profession of the duty to preserve the
supposedly violated by the alleged unconstitutional acts of the House of rule of law and nothing more, although undoubtedly true, does not suffice to
Representatives. 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
In a long line of cases, however, concerned citizens, taxpayers and advanced constitutional issues which deserve the attention of this Court in
legislators when specific requirements have been met have been given view of their seriousness, novelty and weight as precedents.86 It, therefore,
standing by this Court. behooves this Court to relax the rules on standing and to resolve the issues
presented by it.
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 In the same vein, when dealing with class suits filed in behalf of all citizens,
show, not only that the law or any government act is invalid, but also that he persons intervening must be sufficiently numerous to fully protect the
sustained or is in imminent danger of sustaining some direct injury as a result interests of all concerned87 to enable the court to deal properly with all
of its enforcement, and not merely that he suffers thereby in some indefinite interests involved in the suit,88 for a judgment in a class suit, whether
way. It must appear that the person complaining has been or is about to be favorable or unfavorable to the class, is, under the res judicata principle,
denied some right or privilege to which he is lawfully entitled or that he is binding on all members of the class whether or not they were before the
about to be subjected to some burdens or penalties by reason of the statute court.89 Where it clearly appears that not all interests can be sufficiently
or act complained of.77 In fine, when the proceeding involves the assertion of represented as shown by the divergent issues raised in the numerous
a public right,78 the mere fact that he is a citizen satisfies the requirement of petitions before this Court, G.R. No. 160365 as a class suit ought to fail.
personal interest. Since petitioners additionally allege standing as citizens and taxpayers,
however, their petition will stand.
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 The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground
any improper purpose, or that there is a wastage of public funds through the of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No.
enforcement of an invalid or unconstitutional law. 79 Before he can invoke the 160397, is mum on his standing.
power of judicial review, however, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by There being no doctrinal definition of transcendental importance, the
taxation and that he would sustain a direct injury as a result of the following instructive determinants formulated by former Supreme Court
enforcement of the questioned statute or contract. It is not sufficient that he Justice Florentino P. Feliciano are instructive: (1) the character of the funds
has merely a general interest common to all members of the public.80 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
At all events, courts are vested with discretion as to whether or not a agency or instrumentality of the government; and (3) the lack of any other
taxpayer's suit should be entertained.81 This Court opts to grant standing to party with a more direct and specific interest in raising the questions being
most of the petitioners, given their allegation that any impending transmittal
raised.90 Applying these determinants, this Court is satisfied that the issues Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
raised herein are indeed of transcendental importance. Pilipino, Inc., et al. and World War II Veterans Legionnaires of the
Philippines, Inc. possess a legal interest in the matter in litigation the
In not a few cases, this Court has in fact adopted a liberal attitude on the respective motions to intervene were hereby granted.
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 Senator Aquilino Pimentel, on the other hand, sought to intervene for the
paramount importance to the public.91 Such liberality does not, however, limited purpose of making of record and arguing a point of view that differs
mean that the requirement that a party should have an interest in the matter with Senate President Drilon's. He alleges that submitting to this Court's
is totally eliminated. A party must, at the very least, still plead the existence jurisdiction as the Senate President does will undermine the independence of
of such interest, it not being one of which courts can take judicial notice. In the Senate which will sit as an impeachment court once the Articles of
petitioner Vallejos' case, he failed to allege any interest in the case. He does Impeachment are transmitted to it from the House of Representatives.
not thus have standing. Clearly, Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein petitions
With respect to the motions for intervention, Rule 19, Section 2 of the Rules are directed. For this reason, and to fully ventilate all substantial issues
of Court requires an intervenor to possess a legal interest in the matter in relating to the matter at hand, his Motion to Intervene was granted and he
litigation, or in the success of either of the parties, or an interest against both, was, as earlier stated, allowed to argue.
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. Lastly, as to Jaime N. Soriano's motion to intervene, the same must be
While intervention is not a matter of right, it may be permitted by the courts denied for, while he asserts an interest as a taxpayer, he failed to meet the
when the applicant shows facts which satisfy the requirements of the law standing requirement for bringing taxpayer's suits as set forth in Dumlao v.
authorizing intervention.92 Comelec,93 to wit:

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, x x x While, concededly, the elections to be held involve the
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, expenditure of public moneys, nowhere in their Petition do said
save for one additional issue, they raise the same issues and the same petitioners allege that their tax money is "being extracted and spent
standing, and no objection on the part of petitioners Candelaria, et. al. has in violation of specific constitutional protection against abuses of
been interposed, this Court as earlier stated, granted the Motion for Leave of legislative power," or that there is a misapplication of such funds by
Court to Intervene and Petition-in-Intervention. respondent COMELEC, or that public money is being deflected to
any improper purpose. Neither do petitioners seek to restrain
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, respondent from wasting public funds through the enforcement of an
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking invalid or unconstitutional law.94 (Citations omitted)
their right as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of Representatives In praying for the dismissal of the petitions, Soriano failed even to allege that
is successful," this Court found the requisites for intervention had been the act of petitioners will result in illegal disbursement of public funds or in
complied with. 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.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental Ripeness and Prematurity
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed
a "Petition-in-Intervention with Leave to Intervene" to raise the additional In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that
issue of whether or not the second impeachment complaint against the Chief for a case to be considered ripe for adjudication, "it is a prerequisite that
Justice is valid and based on any of the grounds prescribed by the something had by then been accomplished or performed by either branch
Constitution. 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 In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto
the second impeachment complaint against the Chief Justice in accordance Concepcion defined the term "political question," viz:
with the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been [T]he term "political question" connotes, in legal parlance, what it
carried out, i.e., the second impeachment complaint had been filed with the means in ordinary parlance, namely, a question of policy. In other
House of Representatives and the 2001 Rules have already been already words, in the language of Corpus Juris Secundum, it refers to "those
promulgated and enforced, the prerequisite that the alleged unconstitutional questions which, under the Constitution, are to be decided by the
act should be accomplished and performed before suit, as Tan v. Macapagal people in their sovereign capacity, or in regard to which full
holds, has been complied with. discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues
Related to the issue of ripeness is the question of whether the instant dependent upon the wisdom, not legality, of a particular measure.99
petitions are premature. Amicus curiae former Senate President Jovito R. (Italics in the original)
Salonga opines that there may be no urgent need for this Court to render a
decision at this time, it being the final arbiter on questions of constitutionality Prior to the 1973 Constitution, without consistency and seemingly without
anyway. He thus recommends that all remedies in the House and Senate any rhyme or reason, this Court vacillated on its stance of taking cognizance
should first be exhausted. 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
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law power of judicial review.100 In other cases, however, despite the seeming
who suggests to this Court to take judicial notice of on-going attempts to political nature of the therein issues involved, this Court assumed jurisdiction
encourage signatories to the second impeachment complaint to withdraw whenever it found constitutionally imposed limits on powers or functions
their signatures and opines that the House Impeachment Rules provide for conferred upon political bodies.101 Even in the landmark 1988 case of
an opportunity for members to raise constitutional questions themselves Javellana v. Executive Secretary102 which raised the issue of whether the
when the Articles of Impeachment are presented on a motion to transmit to 1973 Constitution was ratified, hence, in force, this Court shunted the political
the same to the Senate. The dean maintains that even assuming that the question doctrine and took cognizance thereof. Ratification by the people of a
Articles are transmitted to the Senate, the Chief Justice can raise the issue of Constitution is a political question, it being a question decided by the people
their constitutional infirmity by way of a motion to dismiss. in their sovereign capacity.

The dean's position does not persuade. First, the withdrawal by the The frequency with which this Court invoked the political question doctrine to
Representatives of their signatures would not, by itself, cure the House refuse to take jurisdiction over certain cases during the Marcos regime
Impeachment Rules of their constitutional infirmity. Neither would such a motivated Chief Justice Concepcion, when he became a Constitutional
withdrawal, by itself, obliterate the questioned second impeachment Commissioner, to clarify this Court's power of judicial review and its
complaint since it would only place it under the ambit of Sections 3(2) and (3) application on issues involving political questions, viz:
of Article XI of the Constitution97 and, therefore, petitioners would continue to
suffer their injuries. MR. CONCEPCION. Thank you, Mr. Presiding Officer.

Second and most importantly, the futility of seeking remedies from either or I will speak on the judiciary. Practically, everybody has made, I suppose, the
both Houses of Congress before coming to this Court is shown by the fact usual comment that the judiciary is the weakest among the three major
that, as previously discussed, neither the House of Representatives nor the branches of the service. Since the legislature holds the purse and the
Senate is clothed with the power to rule with definitiveness on the issue of executive the sword, the judiciary has nothing with which to enforce its
constitutionality, whether concerning impeachment proceedings or otherwise, decisions or commands except the power of reason and appeal to
as said power is exclusively vested in the judiciary by the earlier quoted conscience which, after all, reflects the will of God, and is the most powerful
Section I, Article VIII of the Constitution. Remedy cannot be sought from a of all other powers without exception. x x x And so, with the body's
body which is bereft of power to grant it. indulgence, I will proceed to read the provisions drafted by the Committee on
the Judiciary.
Justiciability
The first section starts with a sentence copied from former Constitutions. It because our main writers were already incarcerated, but also
says: because those who succeeded them in their jobs were under mortal
threat of being the object of wrath of the ruling party. The 1971
The judicial power shall be vested in one Supreme Court and in such Constitutional Convention had begun on June 1, 1971 and by
lower courts as may be established by law. 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
I suppose nobody can question it.
Constitutional Convention, dozens of them, were picked up. One of
them was our very own colleague, Commissioner Calderon. So, the
The next provision is new in our constitutional law. I will read it first unfinished draft of the Constitution was taken over by
and explain. representatives of Malacaang. In 17 days, they finished what the
delegates to the 1971 Constitutional Convention had been unable to
Judicial power includes the duty of courts of justice to settle actual accomplish for about 14 months. The draft of the 1973 Constitution
controversies involving rights which are legally demandable and was presented to the President around December 1, 1972,
enforceable and to determine whether or not there has been a grave whereupon the President issued a decree calling a plebiscite which
abuse of discretion amounting to lack or excess of jurisdiction on the suspended the operation of some provisions in the martial law
part or instrumentality of the government. decree which prohibited discussions, much less public discussions of
certain matters of public concern. The purpose was presumably to
Fellow Members of this Commission, this is actually a product of our allow a free discussion on the draft of the Constitution on which a
experience during martial law. As a matter of fact, it has some plebiscite was to be held sometime in January 1973. If I may use a
antecedents in the past, but the role of the judiciary during the word famous by our colleague, Commissioner Ople, during the
deposed regime was marred considerably by the circumstance interregnum, however, the draft of the Constitution was analyzed and
that in a number of cases against the government, which then criticized with such a telling effect that Malacaang felt the danger of
had no legal defense at all, the solicitor general set up the its approval. So, the President suspended indefinitely the holding of
defense of political questions and got away with it. As a the plebiscite and announced that he would consult the people in a
consequence, certain principles concerning particularly the writ referendum to be held from January 10 to January 15. But the
of habeas corpus, that is, the authority of courts to order the questions to be submitted in the referendum were not announced
release of political detainees, and other matters related to the until the eve of its scheduled beginning, under the supposed
operation and effect of martial law failed because the supervision not of the Commission on Elections, but of what was
government set up the defense of political question. And the then designated as "citizens assemblies or barangays." Thus the
Supreme Court said: "Well, since it is political, we have no authority barangays came into existence. The questions to be propounded
to pass upon it." The Committee on the Judiciary feels that this were released with proposed answers thereto, suggesting that it was
was not a proper solution of the questions involved. It did not unnecessary to hold a plebiscite because the answers given in the
merely request an encroachment upon the rights of the people, referendum should be regarded as the votes cast in the plebiscite.
but it, in effect, encouraged further violations thereof during the Thereupon, a motion was filed with the Supreme Court praying that
martial law regime. I am sure the members of the Bar are familiar the holding of the referendum be suspended. When the motion was
with this situation. But for the benefit of the Members of the being heard before the Supreme Court, the Minister of Justice
Commission who are not lawyers, allow me to explain. I will start with delivered to the Court a proclamation of the President declaring that
a decision of the Supreme Court in 1973 on the case of Javellana vs. the new Constitution was already in force because the overwhelming
the Secretary of Justice, if I am not mistaken. Martial law was majority of the votes cast in the referendum favored the Constitution.
announced on September 22, although the proclamation was dated Immediately after the departure of the Minister of Justice, I
September 21. The obvious reason for the delay in its publication proceeded to the session room where the case was being heard. I
was that the administration had apprehended and detained then informed the Court and the parties the presidential proclamation
prominent newsmen on September 21. So that when martial law was declaring that the 1973 Constitution had been ratified by the people
announced on September 22, the media hardly published anything and is now in force.
about it. In fact, the media could not publish any story not only
A number of other cases were filed to declare the presidential personal that to enforce them by actual compulsion would be highly
proclamation null and void. The main defense put up by the derogatory to human dignity."
government was that the issue was a political question and that the
court had no jurisdiction to entertain the case. This is why the first part of the second paragraph of Section I provides that:

xxx Judicial power includes the duty of courts to settle actual


controversies involving rights which are legally demandable or
The government said that in a referendum held from January 10 to enforceable . . .
January 15, the vast majority ratified the draft of the Constitution.
Note that all members of the Supreme Court were residents of The courts, therefore, cannot entertain, much less decide,
Manila, but none of them had been notified of any referendum in hypothetical questions. In a presidential system of government,
their respective places of residence, much less did they participate in the Supreme Court has, also another important function. The
the alleged referendum. None of them saw any referendum powers of government are generally considered divided into
proceeding. three branches: the Legislative, the Executive and the Judiciary.
Each one is supreme within its own sphere and independent of
In the Philippines, even local gossips spread like wild fire. So, a the others. Because of that supremacy power to determine
majority of the members of the Court felt that there had been no whether a given law is valid or not is vested in courts of justice.
referendum.
Briefly stated, courts of justice determine the limits of power of
Second, a referendum cannot substitute for a plebiscite. There is a the agencies and offices of the government as well as those of
big difference between a referendum and a plebiscite. But its officers. In other words, the judiciary is the final arbiter on
another group of justices upheld the defense that the issue was the question whether or not a branch of government or any of
a political question. Whereupon, they dismissed the case. This its officials has acted without jurisdiction or in excess of
is not the only major case in which the plea of "political jurisdiction, or so capriciously as to constitute an abuse of
question" was set up. There have been a number of other cases discretion amounting to excess of jurisdiction or lack of
in the past. jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
x x x The defense of the political question was rejected because
the issue was clearly justiciable. This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to settle
xxx matters of this nature, by claiming that such matters constitute
a political question.
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power? I have made these extended remarks to the end that the
What is a political question? Commissioners may have an initial food for thought on the subject of
the judiciary.103 (Italics in the original; emphasis supplied)
The Supreme Court, like all other courts, has one main function: to
settle actual controversies involving conflicts of rights which are During the deliberations of the Constitutional Commission, Chief Justice
demandable and enforceable. There are rights which are guaranteed Concepcion further clarified the concept of judicial power, thus:
by law but cannot be enforced by a judiciary party. In a decided
case, a husband complained that his wife was unwilling to perform MR. NOLLEDO. The Gentleman used the term "judicial power"
her duties as a wife. The Court said: "We can tell your wife what her but judicial power is not vested in the Supreme Court alone but
duties as such are and that she is bound to comply with them, but we also in other lower courts as may be created by law.
cannot force her physically to discharge her main marital duty to her
husband. There are some rights guaranteed by law, but they are so MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. It definitely does not eliminate the fact that
truly political questions are beyond the pale of judicial power.104
MR. CONCEPCION. No, I know this is not. The Gentleman (Emphasis supplied)
seems to identify political questions with jurisdictional
questions. But there is a difference. 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
MR. NOLLEDO. Because of the expression "judicial power"? duty, a duty which cannot be abdicated by the mere specter of this creature
called the political question doctrine. Chief Justice Concepcion hastened to
MR. CONCEPCION. No. Judicial power, as I said, refers to clarify, however, that Section 1, Article VIII was not intended to do away with
ordinary cases but where there is a question as to whether the "truly political questions." From this clarification it is gathered that there are
government had authority or had abused its authority to the two species of political questions: (1) "truly political questions" and (2) those
extent of lacking jurisdiction or excess of jurisdiction, that is which "are not truly political questions."
not a political question. Therefore, the court has the duty to
decide. 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
xxx
review questions which are not truly political in nature.
FR. BERNAS. Ultimately, therefore, it will always have to be decided
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
by the Supreme Court according to the new numerical need for
College of Law, this Court has in fact in a number of cases taken jurisdiction
votes.
over questions which are not truly political following the effectivity of the
present Constitution.
On another point, is it the intention of Section 1 to do away with
the political question doctrine?
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice
Irene Cortes, held:
MR. CONCEPCION. No.
The present Constitution limits resort to the political question doctrine
FR. BERNAS. It is not. and broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the political
MR. CONCEPCION. No, because whenever there is an abuse of departments to decide.106 x x x
discretion, amounting to a lack of jurisdiction. . .
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro
FR. BERNAS. So, I am satisfied with the answer that it is not Padilla, this Court declared:
intended to do away with the political question doctrine.
The "allocation of constitutional boundaries" is a task that this Court
MR. CONCEPCION. No, certainly not. must perform under the Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither interposes an
When this provision was originally drafted, it sought to define obstacle to judicial determination of the rival claims. The
what is judicial power. But the Gentleman will notice it says, jurisdiction to delimit constitutional boundaries has been given
"judicial power includes" and the reason being that the to this Court. It cannot abdicate that obligation mandated by the
definition that we might make may not cover all possible areas. 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate
FR. BERNAS. So, this is not an attempt to solve the problems cases."108 (Emphasis and underscoring supplied)
arising from the political question doctrine.
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court upon political bodies. If there are, then our courts are duty-bound to examine
ruled: whether the branch or instrumentality of the government properly acted
within such limits. This Court shall thus now apply this standard to the
In the case now before us, the jurisdictional objection becomes even present controversy.
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 These petitions raise five substantial issues:
would still not be precluded from resolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even I. Whether the offenses alleged in the Second impeachment
the political question.110 x x x (Emphasis and underscoring supplied.) complaint constitute valid impeachable offenses under the
Constitution.
Section 1, Article VIII, of the Court does not define what are justiciable
political questions and non-justiciable political questions, however. II. Whether the second impeachment complaint was filed in
Identification of these two species of political questions may be problematic. accordance with Section 3(4), Article XI of the Constitution.
There has been no clear standard. The American case of Baker v. Carr111
attempts to provide some:
III. Whether the legislative inquiry by the House Committee on
Justice into the Judicial Development Fund is an unconstitutional
x x x Prominent on the surface of any case held to involve a political infringement of the constitutionally mandated fiscal autonomy of the
question is found a textually demonstrable constitutional commitment judiciary.
of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
IV. Whether Sections 15 and 16 of Rule V of the Rules on
impossibility of deciding without an initial policy determination of a
Impeachment adopted by the 12th Congress are unconstitutional for
kind clearly for non-judicial discretion; or the impossibility of a court's
violating the provisions of Section 3, Article XI of the Constitution.
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 V. Whether the second impeachment complaint is barred under
potentiality of embarrassment from multifarious pronouncements by Section 3(5) of Article XI of the Constitution.
various departments on one question.112 (Underscoring supplied)
The first issue goes into the merits of the second impeachment
Of these standards, the more reliable have been the first three: (1) a textually complaint over which this Court has no jurisdiction. More importantly,
demonstrable constitutional commitment of the issue to a coordinate political any discussion of this issue would require this Court to make a
department; (2) the lack of judicially discoverable and manageable standards determination of what constitutes an impeachable offense. Such a
for resolving it; and (3) the impossibility of deciding without an initial policy determination is a purely political question which the Constitution has
determination of a kind clearly for non-judicial discretion. These standards left to the sound discretion of the legislation. Such an intent is clear
are not separate and distinct concepts but are interrelated to each in that the from the deliberations of the Constitutional Commission.113
presence of one strengthens the conclusion that the others are also present.
Although Section 2 of Article XI of the Constitution enumerates six grounds
The problem in applying the foregoing standards is that the American for impeachment, two of these, namely, other high crimes and betrayal of
concept of judicial review is radically different from our current concept, for public trust, elude a precise definition. In fact, an examination of the records
Section 1, Article VIII of the Constitution provides our courts with far less of the 1986 Constitutional Commission shows that the framers could find no
discretion in determining whether they should pass upon a constitutional better way to approximate the boundaries of betrayal of public trust and other
issue. 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
In our jurisdiction, the determination of a truly political question from a non- question which is beyond the scope of its judicial power under Section 1,
justiciable political question lies in the answer to the question of whether Article VIII.
there are constitutionally imposed limits on powers or functions conferred
Lis Mota which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
It is a well-settled maxim of adjudication that an issue assailing the investigations in aid of legislation; (b) an open breach of the doctrine of
constitutionality of a governmental act should be avoided whenever possible. separation of powers; (c) a violation of the constitutionally mandated fiscal
Thus, in the case of Sotto v. Commission on Elections,115 this Court held: autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
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 Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
invalid, unless such question is raised by the parties and that when it studied opinion of this Court that the issue of the constitutionality of the said
is raised, if the record also presents some other ground upon Resolution and resulting legislative inquiry is too far removed from the issue
which the court may rest its judgment, that course will be of the validity of the second impeachment complaint. Moreover, the
adopted and the constitutional question will be left for resolution of said issue would, in the Court's opinion, require it to form a rule
consideration until a case arises in which a decision upon such of constitutional law touching on the separate and distinct matter of
question will be unavoidable.116 [Emphasis and underscoring legislative inquiries in general, which would thus be broader than is required
supplied] 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
The same principle was applied in Luz Farms v. Secretary of Agrarian petition which would not be adversely affected by the Court's ruling.
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: 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:
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 The 1987 Constitution expressly recognizes the power of both
first satisfied. Thus, there must be an actual case or controversy houses of Congress to conduct inquiries in aid of legislation. Thus,
involving a conflict of legal rights susceptible of judicial Section 21, Article VI thereof provides:
determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the The Senate or the House of Representatives or any of its respective
question is unavoidably necessary to the decision of the case committees may conduct inquiries in aid of legislation in accordance
itself.118 [Emphasis supplied] with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.
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. The power of both houses of Congress to conduct inquiries in aid of
legislation is not, therefore absolute or unlimited. Its exercise is
As noted earlier, the instant consolidated petitions, while all seeking the circumscribed by the afore-quoted provision of the Constitution.
invalidity of the second impeachment complaint, collectively raise several Thus, as provided therein, the investigation must be "in aid of
constitutional issues upon which the outcome of this controversy could legislation in accordance with its duly published rules of procedure"
possibly be made to rest. In determining whether one, some or all of the and that "the rights of persons appearing in or affected by such
remaining substantial issues should be passed upon, this Court is guided by inquiries shall be respected." It follows then that the right rights of
the related cannon of adjudication that "the court should not form a rule of persons under the Bill of Rights must be respected, including the
constitutional law broader than is required by the precise facts to which it is right to due process and the right not be compelled to testify against
applied."119 one's self.123

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
other reasons, the second impeachment complaint is invalid since it directly Quadra, while joining the original petition of petitioners Candelaria, et. al.,
resulted from a Resolution120 calling for a legislative inquiry into the JDF, introduce the new argument that since the second impeachment complaint
was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix 76 or more representatives who signed and verified the second impeachment
William Fuentebella, the same does not fall under the provisions of Section 3 complaint as complainants, signed and verified the signatories to a resolution
(4), Article XI of the Constitution which reads: of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of
Section 3(4) In case the verified complaint or resolution of the House of Representatives as endorsers is not the resolution of
impeachment is filed by at least one-third of all the Members of the impeachment contemplated by the Constitution, such resolution of
House, the same shall constitute the Articles of Impeachment, and endorsement being necessary only from at least one Member whenever a
trial by the Senate shall forthwith proceed. citizen files a verified impeachment complaint.

They assert that while at least 81 members of the House of Representatives While the foregoing issue, as argued by intervenors Macalintal and Quadra,
signed a Resolution of Endorsement/Impeachment, the same did not satisfy does indeed limit the scope of the constitutional issues to the provisions on
the requisites for the application of the afore-mentioned section in that the impeachment, more compelling considerations militate against its adoption
"verified complaint or resolution of impeachment" was not filed "by at least as the lis mota or crux of the present controversy. Chief among this is the
one-third of all the Members of the House." With the exception of fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
Representatives Teodoro and Fuentebella, the signatories to said Resolution 160262, have raised this issue as a ground for invalidating the second
are alleged to have verified the same merely as a "Resolution of impeachment complaint. Thus, to adopt this additional ground as the basis
Endorsement." Intervenors point to the "Verification" of the Resolution of for deciding the instant consolidated petitions would not only render for
Endorsement which states that: naught the efforts of the original petitioners in G.R. No. 160262, but the
efforts presented by the other petitioners as well.
"We are the proponents/sponsors of the Resolution of Endorsement
of the abovementioned Complaint of Representatives Gilberto Again, the decision to discard the resolution of this issue as unnecessary for
Teodoro and Felix William B. Fuentebella x x x"124 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.
Intervenors Macalintal and Quadra further claim that what the Constitution
Consequently, they are not unduly prejudiced by this Court's decision.
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 In sum, this Court holds that the two remaining issues, inextricably linked as
least one-third of the Members of the House of Representatives. Not having they are, constitute the very lis mota of the instant controversy: (1) whether
complied with this requirement, they concede that the second impeachment Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by
complaint should have been calendared and referred to the House the 12th Congress are unconstitutional for violating the provisions of Section
Committee on Justice under Section 3(2), Article XI of the Constitution, viz: 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.
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 Judicial Restraint
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days Senator Pimentel urges this Court to exercise judicial restraint on the ground
thereafter. The Committee, after hearing, and by a majority vote of all that the Senate, sitting as an impeachment court, has the sole power to try
its Members, shall submit its report to the House within sixty session and decide all cases of impeachment. Again, this Court reiterates that the
days from such referral, together with the corresponding resolution. power of judicial review includes the power of review over justiciable issues
The resolution shall be calendared for consideration by the House in impeachment proceedings.
within ten session days from receipt thereof.
On the other hand, respondents Speaker De Venecia et. al. argue that
Intervenors' foregoing position is echoed by Justice Maambong who opined "[t]here is a moral compulsion for the Court to not assume jurisdiction over
that for Section 3 (4), Article XI of the Constitution to apply, there should be the impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the Legislature To our mind, this is the overriding consideration that the Tribunal
has a moral compulsion not to pass laws with penalty clauses because be not prevented from discharging a duty which it alone has the
Members of the House of Representatives are subject to them. 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 exercise of judicial restraint over justiciable issues is not an option the fundamental law.
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 It is aptly noted in the first of the questioned Resolutions that the
tribunal to which the controversy may be referred."126 Otherwise, this Court framers of the Constitution could not have been unaware of the
would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the possibility of an election contest that would involve all Senators
Constitution. More than being clothed with authority thus, this Court is duty- elect, six of whom would inevitably have to sit in judgment thereon.
bound to take cognizance of the instant petitions.127 In the august words of Indeed, such possibility might surface again in the wake of the 1992
amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn elections when once more, but for the last time, all 24 seats in the
duty which may not be renounced. To renounce it, even if it is vexatious, Senate will be at stake. Yet the Constitution provides no scheme or
would be a dereliction of duty." mode for settling such unusual situations or for the substitution of
Senators designated to the Tribunal whose disqualification may be
Even in cases where it is an interested party, the Court under our system of sought. Litigants in such situations must simply place their trust and
government cannot inhibit itself and must rule upon the challenge because hopes of vindication in the fairness and sense of justice of the
no other office has the authority to do so.128 On the occasion that this Court Members of the Tribunal. Justices and Senators, singly and
had been an interested party to the controversy before it, it has acted upon collectively.
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] Let us not be misunderstood as saying that no Senator-Member of
appointment to the office, the public has laid on [a member of the judiciary] the Senate Electoral Tribunal may inhibit or disqualify himself from
their confidence that [he] is mentally and morally fit to pass upon the merits sitting in judgment on any case before said Tribunal. Every Member
of their varied contentions. For this reason, they expect [him] to be fearless in of the Tribunal may, as his conscience dictates, refrain from
[his] pursuit to render justice, to be unafraid to displease any person, interest participating in the resolution of a case where he sincerely feels that
or power and to be equipped with a moral fiber strong enough to resist the his personal interests or biases would stand in the way of an
temptations lurking in [his] office."130 objective and impartial judgment. What we are merely saying is that
in the light of the Constitution, the Senate Electoral Tribunal cannot
The duty to exercise the power of adjudication regardless of interest had legally function as such, absent its entire membership of Senators
already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In and that no amendment of its Rules can confer on the three Justices-
that case, the petitioners filed with the respondent Senate Electoral Tribunal Members alone the power of valid adjudication of a senatorial
a Motion for Disqualification or Inhibition of the Senators-Members thereof election contest.
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 More recently in the case of Estrada v. Desierto,132 it was held that:
would have reduced the Tribunal's membership to only its three Justices-
Members whose disqualification was not sought, leaving them to decide the Moreover, to disqualify any of the members of the Court, particularly
matter. This Court held: a majority of them, is nothing short of pro tanto depriving the Court
itself of its jurisdiction as established by the fundamental law.
Where, as here, a situation is created which precludes the Disqualification of a judge is a deprivation of his judicial power. And if
substitution of any Senator sitting in the Tribunal by any of his other that judge is the one designated by the Constitution to exercise the
colleagues in the Senate without inviting the same objections to the jurisdiction of his court, as is the case with the Justices of this Court,
substitute's competence, the proposed mass disqualification, if the deprivation of his or their judicial power is equivalent to the
sanctioned and ordered, would leave the Tribunal no alternative but deprivation of the judicial power of the court itself. It affects the very
to abandon a duty that no other court or body can perform, but which heart of judicial independence. The proposed mass disqualification, if
it cannot lawfully discharge if shorn of the participation of its entire sanctioned and ordered, would leave the Court no alternative but to
membership of Senators. abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.133 (Italics in the declared unconstitutional. In Massachusetts v. Mellon, the challenge
original) of the federal Maternity Act was not entertained although made by
the Commonwealth on behalf of all its citizens.
Besides, there are specific safeguards already laid down by the Court when it
exercises its power of judicial review. 6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
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 7. When the validity of an act of the Congress is drawn in question,
Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows: and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
1. The Court will not pass upon the constitutionality of legislation in a construction of the statute is fairly possible by which the question
friendly, non-adversary proceeding, declining because to decide may be avoided (citations omitted).
such questions 'is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy The foregoing "pillars" of limitation of judicial review, summarized in
between individuals. It never was the thought that, by means of a Ashwander v. TVA from different decisions of the United States Supreme
friendly suit, a party beaten in the legislature could transfer to the Court, can be encapsulated into the following categories:
courts an inquiry as to the constitutionality of the legislative act.'
1. that there be absolute necessity of deciding a case
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 2. that rules of constitutional law shall be formulated only as required
Court to decide questions of a constitutional nature unless absolutely by the facts of the case
necessary to a decision of the case.'
3. that judgment may not be sustained on some other ground
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.'
4. that there be actual injury sustained by the party by reason of the
operation of the statute
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other 5. that the parties are not in estoppel
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 6. that the Court upholds the presumption of constitutionality.
question of statutory construction or general law, the Court will
decide only the latter. Appeals from the highest court of a state As stated previously, parallel guidelines have been adopted by this Court in
challenging its decision of a question under the Federal Constitution the exercise of judicial review:
are frequently dismissed because the judgment can be sustained on
an independent state ground. 1. actual case or controversy calling for the exercise of judicial power

5. The Court will not pass upon the validity of a statute upon 2. the person challenging the act must have "standing" to challenge;
complaint of one who fails to show that he is injured by its operation. he must have a personal and substantial interest in the case such
Among the many applications of this rule, none is more striking than that he has sustained, or will sustain, direct injury as a result of its
the denial of the right of challenge to one who lacks a personal or enforcement
property right. Thus, the challenge by a public official interested only
in the performance of his official duty will not be entertained . . . In 3. the question of constitutionality must be raised at the earliest
Fairchild v. Hughes, the Court affirmed the dismissal of a suit possible opportunity
brought by a citizen who sought to have the Nineteenth Amendment
4. the issue of constitutionality must be the very lis mota of the violence, chaos and anarchy by encouraging disrespect for the fundamental
case.136 law of the land.

Respondents Speaker de Venecia, et. al. raise another argument for judicial Substituting the word public officers for judges, this Court is well guided by
restraint the possibility that "judicial review of impeachments might also lead the doctrine in People v. Veneracion, to wit:141
to embarrassing conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or conflicts of interest Obedience to the rule of law forms the bedrock of our system of
in judicial hearings, and the scenario that it would be confusing and justice. If [public officers], under the guise of religious or political
humiliating and risk serious political instability at home and abroad if the beliefs were allowed to roam unrestricted beyond boundaries within
judiciary countermanded the vote of Congress to remove an impeachable which they are required by law to exercise the duties of their office,
official.137 Intervenor Soriano echoes this argument by alleging that failure of then law becomes meaningless. A government of laws, not of men
this Court to enforce its Resolution against Congress would result in the excludes the exercise of broad discretionary powers by those acting
diminution of its judicial authority and erode public confidence and faith in the under its authority. Under this system, [public officers] are guided by
judiciary. the Rule of Law, and ought "to protect and enforce it without fear or
favor," resist encroachments by governments, political parties, or
Such an argument, however, is specious, to say the least. As correctly stated even the interference of their own personal beliefs.142
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 Constitutionality of the Rules of Procedure
in all impeachment cases. Justices cannot abandon their constitutional duties for Impeachment Proceedings
just because their action may start, if not precipitate, a crisis. adopted by the 12th Congress

Justice Feliciano warned against the dangers when this Court refuses to act. Respondent House of Representatives, through Speaker De Venecia, argues
that Sections 16 and 17 of Rule V of the House Impeachment Rules do not
x x x Frequently, the fight over a controversial legislative or executive violate Section 3 (5) of Article XI of our present Constitution, contending that
act is not regarded as settled until the Supreme Court has passed the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it
upon the constitutionality of the act involved, the judgment has not is the House of Representatives, as a collective body, which has the
only juridical effects but also political consequences. Those political exclusive power to initiate all cases of impeachment; that initiate could not
consequences may follow even where the Court fails to grant the possibly mean "to file" because filing can, as Section 3 (2), Article XI of the
petitioner's prayer to nullify an act for lack of the necessary number Constitution provides, only be accomplished in 3 ways, to wit: (1) by a
of votes. Frequently, failure to act explicitly, one way or the other, verified complaint for impeachment by any member of the House of
itself constitutes a decision for the respondent and validation, or at Representatives; or (2) by any citizen upon a resolution of endorsement by
least quasi-validation, follows." 138 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
Thus, in Javellana v. Executive Secretary139 where this Court was split and prohibiting the initiation of impeachment proceedings against the same
"in the end there were not enough votes either to grant the petitions, or to officials could not have been violated as the impeachment complaint against
sustain respondent's claims,"140 the pre-existing constitutional order was Chief Justice Davide and seven Associate Justices had not been initiated as
disrupted which paved the way for the establishment of the martial law the House of Representatives, acting as the collective body, has yet to act on
regime. it.

Such an argument by respondents and intervenor also presumes that the The resolution of this issue thus hinges on the interpretation of the term
coordinate branches of the government would behave in a lawless manner "initiate." Resort to statutory construction is, therefore, in order.
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 That the sponsor of the provision of Section 3(5) of the Constitution,
government will behave in a precipitate manner and risk social upheaval, 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 which have been furnished the Members of this body. This is borne
the Constitutional Commission proceedings, which he (Commissioner out of my experience as a member of the Committee on Justice,
Regalado) as amicus curiae affirmed during the oral arguments on the Human Rights and Good Government which took charge of the last
instant petitions held on November 5, 2003 at which he added that the act of impeachment resolution filed before the First Batasang Pambansa.
"initiating" included the act of taking initial action on the complaint, dissipates For the information of the Committee, the resolution covers
any doubt that indeed the word "initiate" as it twice appears in Article XI (3) several steps in the impeachment proceedings starting with
and (5) of the Constitution means to file the complaint and take initial action initiation, action of the Speaker committee action, calendaring
on it. of report, voting on the report, transmittal referral to the Senate,
trial and judgment by the Senate.
"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 xxx
International Dictionary of the English Language concisely puts it, it means
"to perform or facilitate the first action," which jibes with Justice Regalado's MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
position, and that of Father Bernas, who elucidated during the oral reconsideration of the approval of the amendment submitted by
arguments of the instant petitions on November 5, 2003 in this wise: Commissioner Regalado, but I will just make of record my thinking
that we do not really initiate the filing of the Articles of Impeachment
Briefly then, an impeachment proceeding is not a single act. It is a on the floor. The procedure, as I have pointed out earlier, was
comlexus of acts consisting of a beginning, a middle and an end. that the initiation starts with the filing of the complaint. And
The end is the transmittal of the articles of impeachment to the what is actually done on the floor is that the committee
Senate. The middle consists of those deliberative moments leading resolution containing the Articles of Impeachment is the one
to the formulation of the articles of impeachment. The beginning or approved by the body.
the initiation is the filing of the complaint and its referral to the
Committee on Justice. As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on the floor. If
Finally, it should be noted that the House Rule relied upon by we only have time, I could cite examples in the case of the
Representatives Cojuangco and Fuentebella says that impeachment impeachment proceedings of President Richard Nixon wherein the
is "deemed initiated" when the Justice Committee votes in favor of Committee on the Judiciary submitted the recommendation, the
impeachment or when the House reverses a contrary vote of the resolution, and the Articles of Impeachment to the body, and it was
Committee. Note that the Rule does not say "impeachment the body who approved the resolution. It is not the body which
proceedings" are initiated but rather are "deemed initiated." The initiates it. It only approves or disapproves the resolution. So,
language is recognition that initiation happened earlier, but by legal on that score, probably the Committee on Style could help in
fiction there is an attempt to postpone it to a time after actual rearranging these words because we have to be very technical about
initiation. (Emphasis and underscoring supplied) this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with
As stated earlier, one of the means of interpreting the Constitution is looking me. The proceedings on the case of Richard Nixon are with me. I
into the intent of the law. Fortunately, the intent of the framers of the 1987 have submitted my proposal, but the Committee has already
Constitution can be pried from its records: decided. Nevertheless, I just want to indicate this on record.

MR. MAAMBONG. With reference to Section 3, regarding the xxx


procedure and the substantive provisions on impeachment, I
understand there have been many proposals and, I think, these MR. MAAMBONG. I would just like to move for a reconsideration of
would need some time for Committee action. 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
However, I would just like to indicate that I submitted to the the Rules of the House of Representatives of the United States
Committee a resolution on impeachment proceedings, copies of regarding impeachment.
I am proposing, Madam President, without doing damage to any of During the oral arguments before this Court, Father Bernas clarified that the
this provision, that on page 2, Section 3 (3), from lines 17 to 18, we word "initiate," appearing in the constitutional provision on impeachment, viz:
delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the word Section 3 (1) The House of Representatives shall have the exclusive
"resolution" the phrase WITH THE ARTICLES, and then capitalize power to initiate all cases of impeachment.
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
xxx
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 (5) No impeachment proceedings shall be initiated against the same
be recorded." official more than once within a period of one year, (Emphasis
supplied)
I already mentioned earlier yesterday that the initiation, as far as
the House of Representatives of the United States is concerned, refers to two objects, "impeachment case" and "impeachment proceeding."
really starts from the filing of the verified complaint and every
resolution to impeach always carries with it the Articles of Father Bernas explains that in these two provisions, the common verb is "to
Impeachment. As a matter of fact, the words "Articles of initiate." The object in the first sentence is "impeachment case." The object in
Impeachment" are mentioned on line 25 in the case of the direct the second sentence is "impeachment proceeding." Following the principle of
filing of a verified compliant of one-third of all the Members of the reddendo singuala sinuilis, the term "cases" must be distinguished from the
House. I will mention again, Madam President, that my amendment term "proceedings." An impeachment case is the legal controversy that must
will not vary the substance in any way. It is only in keeping with the be decided by the Senate. Above-quoted first provision provides that the
uniform procedure of the House of Representatives of the United House, by a vote of one-third of all its members, can bring a case to the
States Congress. Thank you, Madam President.143 (Italics in the Senate. It is in that sense that the House has "exclusive power" to initiate all
original; emphasis and udnerscoring supplied) 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
This amendment proposed by Commissioner Maambong was clarified and arrive at a conclusion. A proceeding must be "initiated." To initiate, which
accepted by the Committee on the Accountability of Public Officers.144 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:
It is thus clear that the framers intended "initiation" to start with the filing of (1) there is the filing of a verified complaint either by a Member of the House
the complaint. In his amicus curiae brief, Commissioner Maambong
of Representatives or by a private citizen endorsed by a Member of the
explained that "the obvious reason in deleting the phrase "to initiate
House of the Representatives; (2) there is the processing of this complaint by
impeachment proceedings" as contained in the text of the provision of
the proper Committee which may either reject the complaint or uphold it; (3)
Section 3 (3) was to settle and make it understood once and for all that
whether the resolution of the Committee rejects or upholds the complaint, the
the initiation of impeachment proceedings starts with the filing of the
resolution must be forwarded to the House for further processing; and (4)
complaint, and the vote of one-third of the House in a resolution of
there is the processing of the same complaint by the House of
impeachment does not initiate the impeachment proceedings which was
Representatives which either affirms a favorable resolution of the Committee
already initiated by the filing of a verified complaint under Section 3,
or overrides a contrary resolution by a vote of one-third of all the members. If
paragraph (2), Article XI of the Constitution."145
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
Amicus curiae Constitutional Commissioner Regalado is of the same view as that the House "initiates an impeachment case." It is at this point that an
is Father Bernas, who was also a member of the 1986 Constitutional impeachable public official is successfully impeached. That is, he or she is
Commission, that the word "initiate" as used in Article XI, Section 3(5) means successfully charged with an impeachment "case" before the Senate as
to file, both adding, however, that the filing must be accompanied by an impeachment court.
action to set the complaint moving.
Father Bernas further explains: The "impeachment proceeding" is not the House of Representatives with the Secretary General of the House, the
initiated when the complaint is transmitted to the Senate for trial because that meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
is the end of the House proceeding and the beginning of another proceeding, complaint has been initiated, another impeachment complaint may not be
namely the trial. Neither is the "impeachment proceeding" initiated when the filed against the same official within a one year period.
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 Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
House is already a further step in the proceeding, not its initiation or impeachment proceedings are deemed initiated (1) if there is a finding by the
beginning. Rather, the proceeding is initiated or begins, when a verified House Committee on Justice that the verified complaint and/or resolution is
complaint is filed and referred to the Committee on Justice for action. This is sufficient in substance, or (2) once the House itself affirms or overturns the
the initiating step which triggers the series of steps that follow. 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
The framers of the Constitution also understood initiation in its ordinary before the Secretary-General of the House of Representatives of a verified
meaning. Thus when a proposal reached the floor proposing that "A vote of complaint or a resolution of impeachment by at least 1/3 of the members of
at least one-third of all the Members of the House shall be necessary to the House. These rules clearly contravene Section 3 (5) of Article XI since
initiate impeachment proceedings," this was met by a proposal to delete the the rules give the term "initiate" a meaning different meaning from filing and
line on the ground that the vote of the House does not initiate impeachment referral.
proceeding but rather the filing of a complaint does.146 Thus the line was
deleted and is not found in the present Constitution. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could
not use contemporaneous construction as an aid in the interpretation of
Father Bernas concludes that when Section 3 (5) says, "No impeachment Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that
proceeding shall be initiated against the same official more than once within "their personal opinions (referring to Justices who were delegates to the
a period of one year," it means that no second verified complaint may be Constitution Convention) on the matter at issue expressed during this Court's
accepted and referred to the Committee on Justice for action. By his our deliberations stand on a different footing from the properly recorded
explanation, this interpretation is founded on the common understanding of utterances of debates and proceedings." Further citing said case, he states
the meaning of "to initiate" which means to begin. He reminds that the that this Court likened the former members of the Constitutional Convention
Constitution is ratified by the people, both ordinary and sophisticated, as they to actors who are so absorbed in their emotional roles that intelligent
understand it; and that ordinary people read ordinary meaning into ordinary spectators may know more about the real meaning because of the latter's
words and not abstruse meaning, they ratify words as they understand it and balanced perspectives and disinterestedness.148
not as sophisticated lawyers confuse it.
Justice Gutierrez's statements have no application in the present petitions.
To the argument that only the House of Representatives as a body can There are at present only two members of this Court who participated in the
initiate impeachment proceedings because Section 3 (1) says "The House of 1986 Constitutional Commission Chief Justice Davide and Justice Adolf
Representatives shall have the exclusive power to initiate all cases of Azcuna. Chief Justice Davide has not taken part in these proceedings for
impeachment," This is a misreading of said provision and is contrary to the obvious reasons. Moreover, this Court has not simply relied on the personal
principle of reddendo singula singulis by equating "impeachment cases" with opinions now given by members of the Constitutional Commission, but has
"impeachment proceeding." examined the records of the deliberations and proceedings thereof.

From the records of the Constitutional Commission, to the amicus curiae Respondent House of Representatives counters that under Section 3 (8) of
briefs of two former Constitutional Commissioners, it is without a doubt that Article XI, it is clear and unequivocal that it and only it has the power to make
the term "to initiate" refers to the filing of the impeachment complaint coupled and interpret its rules governing impeachment. Its argument is premised on
with Congress' taking initial action of said complaint. the assumption that Congress has absolute power to promulgate its rules.
This assumption, however, is misplaced.
Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House Section 3 (8) of Article XI provides that "The Congress shall promulgate its
Committee on Justice or, by the filing by at least one-third of the members of 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 United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking
phrase "to effectively carry out the purpose of this section." Hence, these for this Court, held that while the Constitution empowers each house to
rules cannot contravene the very purpose of the Constitution which said rules determine its rules of proceedings, it may not by its rules ignore constitutional
were intended to effectively carry out. Moreover, Section 3 of Article XI restraints or violate fundamental rights, and further that there should be a
clearly provides for other specific limitations on its power to make rules, viz: 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
Section 3. (1) x x x 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
(2) A verified complaint for impeachment may be filed by any 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
Member of the House of Representatives or by any citizen upon a
courts to inquire into the validity of the Rules of Congress, viz:
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 With due respect, I do not agree that the issues posed by the
thereafter. The Committee, after hearing, and by a majority vote of all petitioner are non-justiciable. Nor do I agree that we will
its Members, shall submit its report to the House within sixty session trivialize the principle of separation of power if we assume
days from such referral, together with the corresponding resolution. jurisdiction over he case at bar. Even in the United States, the
The resolution shall be calendared for consideration by the House principle of separation of power is no longer an impregnable
within ten session days from receipt thereof. impediment against the interposition of judicial power on cases
involving breach of rules of procedure by legislators.
(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 Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1)
of Impeachment of the Committee, or override its contrary resolution. as a window to view the issues before the Court. It is in Ballin where
The vote of each Member shall be recorded. the US Supreme Court first defined the boundaries of the power of
the judiciary to review congressional rules. It held:
(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 "x x x
shall constitute the Articles of Impeachment, and trial by the Senate
shall forthwith proceed. "The Constitution, in the same section, provides, that each house
may determine the rules of its proceedings." It appears that in
(5) No impeachment proceedings shall be initiated against the same pursuance of this authority the House had, prior to that day, passed
official more than once within a period of one year. this as one of its rules:

It is basic that all rules must not contravene the Constitution which is the Rule XV
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 3. On the demand of any member, or at the suggestion of the
meaning of the Constitution without need of referendum. 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
In Osmea v. Pendatun,149 this Court held that it is within the province of recorded in the journal, and reported to the Speaker with the names
either House of Congress to interpret its rules and that it was the best judge of the members voting, and be counted and announced in
of what constituted "disorderly behavior" of its members. However, in Paceta determining the presence of a quorum to do business. (House
v. Secretary of the Commission on Appointments,150 Justice (later Chief Journal, 230, Feb. 14, 1890)
Justice) Enrique Fernando, speaking for this Court and quoting Justice
Brandeis in United States v. Smith,151 declared that where the construction to The action taken was in direct compliance with this rule. The
be given to a rule affects persons other than members of the Legislature, the question, therefore, is as to the validity of this rule, and not what
question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the Speaker Justice Roberto Concepcion, the CONCOM expanded and
or clerk may of their own volition place upon the journal. Neither do sharpened the checking powers of the judiciary vis--vis the
the advantages or disadvantages, the wisdom or folly, of such a rule Executive and the Legislative departments of government.155
present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each xxx
house to determine its rules of proceedings. It may not by its
rules ignore constitutional restraints or violate fundamental The Constitution cannot be any clearer. What it granted to this
rights, and there should be a reasonable relation between the Court is not a mere power which it can decline to exercise.
mode or method of proceedings established by the rule and the Precisely to deter this disinclination, the Constitution imposed
result which is sought to be attained. But within these limitations
it as a duty of this Court to strike down any act of a branch or
all matters of method are open to the determination of the House,
instrumentality of government or any of its officials done with
and it is no impeachment of the rule to say that some other way
grave abuse of discretion amounting to lack or excess of
would be better, more accurate, or even more just. It is no objection jurisdiction. Rightly or wrongly, the Constitution has elongated the
to the validity of a rule that a different one has been prescribed and checking powers of this Court against the other branches of
in force for a length of time. The power to make rules is not one government despite their more democratic character, the President
which once exercised is exhausted. It is a continuous power, always and the legislators being elected by the people.156
subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or
tribunal." xxx

Ballin, clearly confirmed the jurisdiction of courts to pass upon The provision defining judicial power as including the 'duty of the
the validity of congressional rules, i.e, whether they are courts of justice. . . to determine whether or not there has been a
constitutional. Rule XV was examined by the Court and it was grave abuse of discretion amounting to lack or excess of jurisdiction
found to satisfy the test: (1) that it did not ignore any constitutional on the part of any branch or instrumentality of the Government'
restraint; (2) it did not violate any fundamental right; and (3) its constitutes the capstone of the efforts of the Constitutional
method had a reasonable relationship with the result sought to be Commission to upgrade the powers of this court vis--vis the other
attained. By examining Rule XV, the Court did not allow its branches of government. This provision was dictated by our
jurisdiction to be defeated by the mere invocation of the principle of experience under martial law which taught us that a stronger and
separation of powers.154 more independent judiciary is needed to abort abuses in
government. x x x
xxx
xxx
In the Philippine setting, there is a more compelling reason for
courts to categorically reject the political question defense In sum, I submit that in imposing to this Court the duty to annul acts
when its interposition will cover up abuse of power. For section of government committed with grave abuse of discretion, the new
1, Article VIII of our Constitution was intentionally cobbled to Constitution transformed this Court from passivity to activism. This
empower courts "x x x to determine whether or not there has transformation, dictated by our distinct experience as nation, is not
been a grave abuse of discretion amounting to lack or excess of merely evolutionary but revolutionary. Under the 1935 and the 1973
jurisdiction on the part of any branch or instrumentality of the Constitutions, this Court approached constitutional violations by
government." This power is new and was not granted to our courts initially determining what it cannot do; under the 1987 Constitution,
in the 1935 and 1972 Constitutions. It was not also xeroxed from there is a shift in stress this Court is mandated to approach
the US Constitution or any foreign state constitution. The constitutional violations not by finding out what it should not do
CONCOM granted this enormous power to our courts in view of but what it must do. The Court must discharge this solemn duty by
our experience under martial law where abusive exercises of not resuscitating a past that petrifies the present.
state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief
I urge my brethren in the Court to give due and serious consideration Having concluded that the initiation takes place by the act of filing of the
to this new constitutional provision as the case at bar once more impeachment complaint and referral to the House Committee on Justice, the
calls us to define the parameters of our power to review violations of initial action taken thereon, the meaning of Section 3 (5) of Article XI
the rules of the House. We will not be true to our trust as the last becomes clear. Once an impeachment complaint has been initiated in the
bulwark against government abuses if we refuse to exercise foregoing manner, another may not be filed against the same official within a
this new power or if we wield it with timidity. To be sure, it is one year period following Article XI, Section 3(5) of the Constitution.
this exceeding timidity to unsheathe the judicial sword that has
increasingly emboldened other branches of government to In fine, considering that the first impeachment complaint, was filed by former
denigrate, if not defy, orders of our courts. In Tolentino, I President Estrada against Chief Justice Hilario G. Davide, Jr., along with
endorsed the view of former Senator Salonga that this novel seven associate justices of this Court, on June 2, 2003 and referred to the
provision stretching the latitude of judicial power is distinctly Filipino House Committee on Justice on August 5, 2003, the second impeachment
and its interpretation should not be depreciated by undue reliance on complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
inapplicable foreign jurisprudence. In resolving the case at bar, the Fuentebella against the Chief Justice on October 23, 2003 violates the
lessons of our own history should provide us the light and not the constitutional prohibition against the initiation of impeachment proceedings
experience of foreigners.157 (Italics in the original emphasis and against the same impeachable officer within a one-year period.
underscoring supplied)
Conclusion
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 If there is anything constant about this country, it is that there is always a
Constitution are involved. phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
Neither may respondent House of Representatives' rely on Nixon v. US158 as conflict or tragedy. Of course this is not to demean the seriousness of the
basis for arguing that this Court may not decide on the constitutionality of controversy over the Davide impeachment. For many of us, the past two
Sections 16 and 17 of the House Impeachment Rules. As already observed, weeks have proven to be an exasperating, mentally and emotionally
the U.S. Federal Constitution simply provides that "the House of exhausting experience. Both sides have fought bitterly a dialectical struggle
Representatives shall have the sole power of impeachment." It adds nothing to articulate what they respectively believe to be the correct position or view
more. It gives no clue whatsoever as to how this "sole power" is to be on the issues involved. Passions had ran high as demonstrators, whether for
exercised. No limitation whatsoever is given. Thus, the US Supreme Court or against the impeachment of the Chief Justice, took to the streets armed
concluded that there was a textually demonstrable constitutional commitment with their familiar slogans and chants to air their voice on the matter. Various
of a constitutional power to the House of Representatives. This reasoning sectors of society - from the business, retired military, to the academe and
does not hold with regard to impeachment power of the Philippine House of denominations of faith offered suggestions for a return to a state of
Representatives since our Constitution, as earlier enumerated, furnishes normalcy in the official relations of the governmental branches affected to
several provisions articulating how that "exclusive power" is to be exercised. obviate any perceived resulting instability upon areas of national life.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Through all these and as early as the time when the Articles of Impeachment
Rules which state that impeachment proceedings are deemed initiated (1) if had been constituted, this Court was specifically asked, told, urged and
there is a finding by the House Committee on Justice that the verified argued to take no action of any kind and form with respect to the prosecution
complaint and/or resolution is sufficient in substance, or (2) once the House by the House of Representatives of the impeachment complaint against the
itself affirms or overturns the finding of the Committee on Justice that the subject respondent public official. When the present petitions were knocking
verified complaint and/or resolution is not sufficient in substance or (3) by the so to speak at the doorsteps of this Court, the same clamor for non-
filing or endorsement before the Secretary-General of the House of interference was made through what are now the arguments of "lack of
Representatives of a verified complaint or a resolution of impeachment by at jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting
least 1/3 of the members of the House thus clearly contravene Section 3 (5) the Court from any move that may have a bearing on the impeachment
of Article XI as they give the term "initiate" a meaning different from "filing." proceedings.

Validity of the Second Impeachment Complaint


This Court did not heed the call to adopt a hands-off stance as far as the act as tested by the limits set by the Constitution? Of course, there are rules
question of the constitutionality of initiating the impeachment complaint on the inhibition of any member of the judiciary from taking part in a case in
against Chief Justice Davide is concerned. To reiterate what has been specified instances. But to disqualify this entire institution now from the suit at
already explained, the Court found the existence in full of all the requisite bar is to regard the Supreme Court as likely incapable of impartiality when
conditions for its exercise of its constitutionally vested power and duty of one of its members is a party to a case, which is simply a non sequitur.
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the No one is above the law or the Constitution. This is a basic precept in any
land. What lies in here is an issue of a genuine constitutional material which legal system which recognizes equality of all men before the law as essential
only this Court can properly and competently address and adjudicate in to the law's moral authority and that of its agents to secure respect for and
accordance with the clear-cut allocation of powers under our system of obedience to its commands. Perhaps, there is no other government branch
government. Face-to-face thus with a matter or problem that squarely falls or instrumentality that is most zealous in protecting that principle of legal
under the Court's jurisdiction, no other course of action can be had but for it equality other than the Supreme Court which has discerned its real meaning
to pass upon that problem head on. and ramifications through its application to numerous cases especially of the
high-profile kind in the annals of jurisprudence. The Chief Justice is not
The claim, therefore, that this Court by judicially entangling itself with the above the law and neither is any other member of this Court. But just
process of impeachment has effectively set up a regime of judicial because he is the Chief Justice does not imply that he gets to have less in
supremacy, is patently without basis in fact and in law. law than anybody else. The law is solicitous of every individual's rights
irrespective of his station in life.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings The Filipino nation and its democratic institutions have no doubt been put to
initiated against the Chief Justice transgressed the constitutionally imposed test once again by this impeachment case against Chief Justice Hilario
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction Davide. Accordingly, this Court has resorted to no other than the Constitution
where it had none, nor indiscriminately turn justiciable issues out of decidedly in search for a solution to what many feared would ripen to a crisis in
political questions. Because it is not at all the business of this Court to assert government. But though it is indeed immensely a blessing for this Court to
judicial dominance over the other two great branches of the government. have found answers in our bedrock of legal principles, it is equally important
Rather, the raison d'etre of the judiciary is to complement the discharge by that it went through this crucible of a democratic process, if only to discover
the executive and legislative of their own powers to bring about ultimately the that it can resolve differences without the use of force and aggression upon
beneficent effects of having founded and ordered our society upon the rule of each other.
law.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in
It is suggested that by our taking cognizance of the issue of constitutionality Impeachment Proceedings which were approved by the House of
of the impeachment proceedings against the Chief Justice, the members of Representatives on November 28, 2001 are unconstitutional. Consequently,
this Court have actually closed ranks to protect a brethren. That the the second impeachment complaint against Chief Justice Hilario G. Davide,
members' interests in ruling on said issue is as much at stake as is that of Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
the Chief Justice. Nothing could be farther from the truth. 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
The institution that is the Supreme Court together with all other courts has 3 of Article XI of the Constitution.
long held and been entrusted with the judicial power to resolve conflicting
legal rights regardless of the personalities involved in the suits or actions. SO ORDERED.
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
G.R. No. 163193 June 15, 2004 On December 22, 1997, Congress enacted Republic Act No. 84362
authorizing the COMELEC to use an automated election system (AES) for
SIXTO S. BRILLANTES, JR., petitioner, the process of voting, counting of votes and canvassing/consolidating the
JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, results of the national and local elections. It also mandated the COMELEC to
DR. JAIME Z. GALVEZ-TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, acquire automated counting machines (ACMs), computer equipment, devices
NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND and materials; and to adopt new electoral forms and printing materials.
JOSE A. BERNAS, Petitioners-in-Intervention,
vs. The COMELEC initially intended to implement the automation during the May
COMMISSION ON ELECTIONS, respondent. 11, 1998 presidential elections, particularly in the Autonomous Region in
Muslim Mindanao (ARMM). The failure of the machines to read correctly
DECISION some automated ballots, however, deferred its implementation.3

CALLEJO, SR., J.: 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 because of time constraints.
Before us is the petition for certiorari and prohibition under Rule 65 of the
Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer,
seeking to nullify, for having been issued with grave abuse of discretion On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170,
amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April a modernization program for the 2004 elections consisting of three (3)
28, 2004 approved by the Commission on Elections phases, to wit:

(COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE (1) PHASE I Computerized system of registration and voters
ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED validation or the so-called "biometrics" system of registration;
RESULTS IN THE MAY 10, 2004 ELECTIONS.1 The petitioner, likewise,
prays for the issuance of a temporary restraining order and, after due (2) PHASE II Computerized voting and counting of votes; and
proceedings, a writ of prohibition to permanently enjoin the respondent
COMELEC from enforcing and implementing the questioned resolution. (3) PHASE III Electronic transmission of results.

After due deliberation, the Court resolved to require the respondent to It resolved to conduct biddings for the three phases.
comment on the petition and to require the parties to observe the status quo
prevailing before the issuance by the COMELEC of the assailed resolution.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive
The parties were heard on oral arguments on May 8, 2004. The respondent Order No. 172,4 which allocated the sum of 2,500,000,000 to exclusively
COMELEC was allowed during the hearing to make a presentation of the fund the AES in time for the May 10, 2004 elections.
Electronic Transmission, Consolidation and Dissemination (PHASE III)
program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-
Media System, Inc. (PMSI). On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the
procurement of supplies, equipment, materials and services needed for the
complete implementation of all three phases of the AES with an approved
The Court, thereafter, resolved to maintain the status quo order issued on budget of 2,500,000,000.
May 6, 2004 and expanded it to cover any and all other issuances related to
the implementation of the so-called election quick count project. In
compliance with the resolution of the Court, the respondent, the petitioner On February 10, 2003, upon the request of the COMELEC, President Gloria
and the petitioners-in-intervention submitted the documents required of them. Macapagal-Arroyo issued Executive Order No. 175,6 authorizing the release
of a supplemental 500 million budget for the AES project of the COMELEC.
The said issuance, likewise, instructed the Department of Budget and
The Antecedents
Management (DBM) to ensure that the aforementioned additional amount be
used exclusively for the AES prescribed under Rep. Act No. 8436,
particularly "the process of voting, counting of votes and Senate President Franklin Drilon had misgivings and misapprehensions
canvassing/consolidation of results of the national and local elections." 7 about the constitutionality of the proposed electronic transmission of results
for the positions of President and Vice-President, and apprised COMELEC
On April 15, 2003, the COMELEC promulgated Resolution No. 6074 Chairman Benjamin Abalos of his position during their meeting on January
awarding the contract for Phase II of the AES to Mega Pacific Consortium 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter
and correspondingly entered into a contract with the latter to implement the reads:
project. On the same day, the COMELEC entered into a separate contract
with Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC Dear Chairman Abalos,
TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION
RESULTS PROJECT CONTRACT.8 The contract, by its very terms, pertains This is to confirm my opinion which I relayed to you during our
to Phase III of the respondent COMELECs AES modernization program. It meeting on January 28th that the Commission on Elections cannot
was predicated on a previous bid award of the contract, for the lease of 1,900 and should not conduct a "quick count" on the results of the elections
units of satellite-based Very Small Aperture Terminals (VSAT) each unit for the positions of President and Vice-President.
consisting of an indoor and outdoor equipment, to PMSI for possessing the
legal, financial and technical expertise necessary to meet the projects
Under Section 4 of Article VII of the Constitution, it is the Congress
objectives. The COMELEC bound and obliged itself to pay PMSI the sum of
that has the sole and exclusive authority to canvass the votes for
298,375,808.90 as rentals for the leased equipment and for its services.
President and Vice-President. Thus, any quick count to be
conducted by the Commission on said positions would in effect
In the meantime, the Information Technology Foundation of the Philippines constitute a canvass of the votes of the President and Vice-
(ITFP), filed a petition for certiorari and prohibition in this Court for the President, which not only would be pre-emptive of the authority of
nullification of Resolution No. 6074 approving the contract for Phase II of the Congress, but also would be lacking of any Constitutional
AES to Mega Pacific Consortium, entitled and docketed as Information authority. You conceded the validity of the position we have taken on
Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. this point.
No. 159139. While the case was pending in this Court, the COMELEC paid
the contract fee to the PMSI in trenches.
In view of the foregoing, we asked the COMELEC during that
meeting to reconsider its plan to include the votes for President and
On January 13, 2004, this Court promulgated its Decision nullifying Vice-President in the "quick count", to which you graciously
COMELEC Resolution No. 6074 awarding the contract for Phase II of the consented. Thank you very much.9
AES to Mega Pacific Consortium. Also voided was the subsequent contract
entered into by the respondent COMELEC with Mega Pacific Consortium for
The COMELEC approved a Resolution on February 10, 2004 referring the
the purchase of computerized voting/counting machines for the purpose of
letter of the Senate President to the members of the COMELEC and its Law
implementing the second phase of the modernization program. Phase II of
Department for study and recommendation. Aside from the concerns of the
the AES was, therefore, scrapped based on the said Decision of the Court
Senate President, the COMELEC had to contend with the primal problem of
and the COMELEC had to maintain the old manual voting and counting sourcing the money for the implementation of the project since the money
system for the May 10, 2004 elections. allocated by the Office of the President for the AES had already been spent
for the acquisition of the equipment. All these developments notwithstanding,
On the other hand, the validation scheme under Phase I of the AES and despite the explicit specification in the project contract for Phase III that
apparently encountered problems in its implementation, as evinced by the the same was functionally intended to be an interface of Phases I and II of
COMELECs pronouncements prior to the elections that it was reverting to the AES modernization program, the COMELEC was determined to carry out
the old listing of voters. Despite the scrapping of Phase II of the AES, the Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with
COMELEC nevertheless ventured to implement Phase III of the AES through the project contractor PMSI, conducted a field test of the electronic
an electronic transmission of advanced "unofficial" results of the 2004 transmission of election results.
elections for national, provincial and municipal positions, also dubbed as an
"unofficial quick count." On April 27, 2004, the COMELEC met en banc to update itself on and
resolve whether to proceed with its implementation of Phase III of the AES. 10
During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. III. A Department of Education (DepEd) Supervisor shall be designated in the
requested his fellow Commissioners that "whatever is said here should be area who will be assigned in each polling center for the purpose of gathering
confined within the four walls of this room and the minutes so that walang from all Board of Election Inspectors (BEI) therein the envelopes containing
masyadong problema.11 Commissioner Tuason, Jr. stated that he had no the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of
objection as to the Phase III of the modernization project itself, but had the ER for local positions, both intended for the COMELEC, which shall be
concerns about the budget. He opined that other funds of the COMELEC used as basis for the encoding and transmission of advanced precinct
may not be proper for realignment. Commissioners results.18
Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns
on the budget for the project. Commissioner Manuel Barcelona, Jr. shared The assailed resolution further provides that written notices of the date, time
the sentiments of Commissioners Garcillano and Tuason, Jr. regarding and place of the electronic transmission of advanced precinct results shall be
personnel and budgetary problems. Commissioner Sadain then manifested given not later than May 5, 2004 to candidates running for local positions,
that the consideration for the contract for Phase III had already been almost and not later than May 7, 2004 to candidates running for national positions,
fully paid even before the Courts nullification of the contract for Phase II of as well as to political parties fielding candidates, and parties,
the AES, but he was open to the possibility of the realignment of funds of the organizations/coalitions participating under the party-list system.19
COMELEC for the funding of the project. He added that if the implementation
of Phase III would not be allowed to continue just because Phase II was
In relation to this, Section 13 of the assailed resolution provides that the
nullified, then it would be 300,000,000 down the drain, in addition to the
encoding proceedings were ministerial and the tabulations were "advanced
already allocated disbursement on Phase II of the AES.12 Other concerns of
unofficial results." The entirety of Section 13, reads:
the Commissioners were on the legality of the project considering the
scrapping of Phase II of the AES, as well as the operational constraints
related to its implementation. Sec. 13. Right to observe the ETC proceedings. Every registered
political party or coalition of parties, accredited political party,
sectoral party/organization or coalition thereof under the party-list,
Despite the dire and serious reservations of most of its members, the
through its representative, and every candidate for national positions
COMELEC, the next day, April 28, 2004, barely two weeks before the has the right to observe/witness the encoding and electronic
national and local elections, approved the assailed resolution declaring that it transmission of the ERs within the authorized perimeter.
"adopts the policy that the precinct election results of each city and
municipality shall be immediately transmitted electronically in advance to the
COMELEC, Manila."13 For the purpose, respondent COMELEC established a Provided, That candidates for the sangguniang panlalawigan, sangguniang
National Consolidation Center (NCC), Electronic Transmission Centers panglungsod or sangguniang bayan belonging to the same slate or ticket
(ETCs) for every city and municipality, and a special ETC at the COMELEC, shall collectively be entitled to only one common observer at the ETC.
Manila, for the Overseas Absentee Voting.14
The citizens arm of the Commission, and civic, religious, professional,
Briefly, the procedure for this electronic transmission of precinct results is business, service, youth and other similar organizations collectively, with
outlined as follows: prior authority of the Commission, shall each be entitled to one (1) observer.
Such fact shall be recorded in the Minutes.
I. The NCC shall receive and consolidate all precinct results based
on the data transmitted to it by each ETC;15 The observer shall have the right to observe, take note of and make
observations on the proceedings of the team. Observations shall be in writing
and, when submitted, shall be attached to the Minutes.
II. Each city and municipality shall have an ETC "where votes
obtained by each candidate for all positions shall be encoded, and
shall consequently be transmitted electronically to the NCC, through The encoding proceedings being ministerial in nature, and the tabulations
Very Small Aperture Terminal (VSAT) facilities."16 For this purpose, being advanced unofficial results, no objections or protests shall be allowed
personal computers shall be allocated for all cities and municipalities or entertained by the ETC.
at the rate of one set for every one hundred seventy-five (175)
precincts;17 In keeping with the "unofficial" character of the electronically transmitted
precinct results, the assailed resolution expressly provides that "no print-outs
shall be released at the ETC and at the NCC."20 Instead, consolidated and previous practice. More importantly, questions of legalities aside, the conduct
per-precinct results shall be made available via the Internet, text messaging, of an advanced count by the COMELEC may affect the credibility of the
and electronic billboards in designated locations. Interested parties may print elections because it will differ from the results obtained from canvassing.
the result published in the COMELEC web site.21 Needless to say, it does not help either that Resolution 6712 was
promulgated only recently, and perceivably, on the eve of the elections.
When apprised of the said resolution, the National Citizens Movement for
Free Elections (NAMFREL), and the heads of the major political parties, In view of the foregoing, we respectfully request the Commission to
namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino reconsider Resolution 6712 which authorizes the use of election returns for
(LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) the consolidation of the election results for the May 10, 2004 elections. 22
Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko,
Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto The Present Petition
M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal
Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim
On May 4, 2004, the petition at bar was filed in this Court.
Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko
Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their
concerns about the assailed resolution: Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z.
Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales,
Honesto M. Isleta and Jose A. Bernas, filed with this Court their Motion to
This refers to COMELEC Resolution 6712 promulgated on 28 April 2004. Admit Attached Petition-in-Intervention. In their petition-in-intervention,
movants-petitioners urge the Court to declare as null and void the assailed
NAMFREL and political parties have the following concerns about Resolution resolution and permanently enjoin the respondent COMELEC from
6712 which arose during consultation over the past week[:] implementing the same. The Court granted the motion of the petitioners-in-
intervention and admitted their petition.
a) The Resolution disregards RA 8173, 8436, and 7166 which
authorize only the citizens arm to use an election return for an In assailing the validity of the questioned resolution, the petitioner avers in
unofficial count; other unofficial counts may not be based on an his petition that there is no provision under Rep. Act No. 8436 which
election return; Indeed, it may be fairly inferred from the law that authorizes the COMELEC to engage in the biometrics/computerized system
except for the copy of the citizens arm, election returns may only be of validation of voters (Phase I) and a system of electronic transmission of
used for canvassing or for receiving dispute resolutions. election results (Phase III). Even assuming for the nonce that all the three (3)
phases are duly authorized, they must complement each other as they are
b) The Commissions copy, the second or third copy of the election not distinct and separate programs but mere stages of one whole scheme.
return, as the case may be, has always been intended to be an Consequently, considering the failed implementation of Phases I and II, there
archived copy and its integrity preserved until required by the is no basis at all for the respondent COMELEC to still push through and
Commission to resolve election disputes. Only the Board of Election pursue with Phase III. The petitioner essentially posits that the counting and
Inspectors is authorized to have been in contact with the return consolidation of votes contemplated under Section 6 of Rep. Act No. 8436
before the Commission unseals it. refers to the official COMELEC count under the fully automated system and
not any kind of "unofficial" count via electronic transmission of advanced
c) The instruction contained in Resolution 6712, to break the seal of results as now provided under the assailed resolution.
the envelope containing copies Nos. 2 and 3 will introduce a break in
the chain of custody prior to its opening by the Commission on The petitioners-in-intervention point to several constitutional infractions
Election[s]. In the process of prematurely breaking the seal of the occasioned by the assailed resolution. They advance the view that the
Board of Election Inspectors, the integrity of the Commissions copy assailed resolution effectively preempts the sole and exclusive authority of
is breached, thereby rendering it void of any probative value. Congress under Article VII, Section 4 of the Constitution to canvass the votes
for President and Vice-President. Further, as there has been no
To us, it does appear that the use of election returns as prescribed in appropriation by Congress for the respondent COMELEC to conduct an
Resolution 6712 departs from the letters and spirit of the law, as well as "unofficial" electronic transmission of results of the May 10, 2004 elections,
any expenditure for the said purpose contravenes Article VI, Section 29 (par. COMELEC opines that it cannot, therefore, be considered as preempting or
1) of the Constitution. usurping the exclusive power of Congress to canvass the votes for President
and Vice-President.
On statutory grounds, the petitioner and petitioners-in-intervention contend
that the assailed resolution encroaches upon the authority of NAMFREL, as The Issues
the citizens accredited arm, to conduct the "unofficial" quick count as
provided under pertinent election laws. It is, likewise, impugned for violating At the said hearing on May 8, 2004, the Court set forth the issues for
Section 52(i) of the Omnibus Election Code, relating to the requirement of resolution as follows:
notice to the political parties and candidates of the adoption of technological
and electronic devices during the elections.
1. Whether the petitioner and the petitioners-intervenors have
standing to sue;
For its part, the COMELEC preliminarily assails the jurisdiction of this Court
to pass upon the assailed resolutions validity claiming that it was 2. Assuming that they have standing, whether the issues they raise
promulgated in the exercise of the respondent COMELECs executive or
are political in nature over which the Court has no jurisdiction;
administrative power. It asserts that the present controversy involves a
"political question;" hence, beyond the ambit of judicial review. It, likewise,
impugns the standing of the petitioner to file the present petition, as he has 3. Assuming the issues are not political, whether Resolution No.
not alleged any injury which he would or may suffer as a result of the 6712 is void:
implementation of the assailed resolution.
(a) for preempting the sole and exclusive authority of
On the merits, the respondent COMELEC denies that the assailed resolution Congress under Art. VII, Sec. 4 of the 1987 Constitution to
was promulgated pursuant to Rep. Act No. 8436, and that it is the canvass the votes for the election of President and Vice-
implementation of Phase III of its modernization program. Rather, as its President;
bases, the respondent COMELEC invokes the general grant to it of the
power to enforce and administer all laws relative to the conduct of elections (b) for violating Art. VI, Sec. 29 (par. 1) of the 1987
and to promulgate rules and regulations to ensure free, orderly and honest Constitution that "no money shall be paid out of the treasury
elections by the Constitution, the Omnibus Election Code, and Rep. Acts except in pursuance of an appropriation made by law;"
Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the
assailed resolution is related to or connected with Phase III of the (c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166
modernization program, no specific law is violated by its implementation. It which authorize only the citizens arm to use an election
posits that Phases I, II and III are mutually exclusive schemes such that, return for an "unofficial" count;
even if the first two phases have been scrapped, the latter phase may still
proceed independently of and separately from the others. It further argues (d) for violation of Sec. 52(i) of the Omnibus Election Code,
that there is statutory basis for it to conduct an "unofficial" quick count. requiring not less than thirty (30) days notice of the use of
Among others, it invokes the general grant to it of the power "to ensure free, new technological and electronic devices; and,
orderly, honest, peaceful and credible elections." Finally, it claims that it had
complied with Section 52(i) of the Omnibus Election Code, as the political
(e) for lack of constitutional or statutory basis; and,
parties and all the candidates of the 2004 elections were sufficiently notified
of the electronic transmission of advanced election results.
4. Whether the implementation of Resolution No. 6712 would cause
trending, confusion and chaos.
The COMELEC trivializes as "purely speculative" these constitutional
concerns raised by the petitioners-in-intervention and the Senate President.
It maintains that what is contemplated in the assailed resolution is not a The Ruling of the Court
canvass of the votes but merely consolidation and transmittal thereof. As
such, it cannot be made the basis for the proclamation of any winning The issues, as earlier defined, shall now be resolved in seriatim:
candidate. Emphasizing that the project is "unofficial" in nature, the
The Petitioners And Petitioners-In-Intervention Possess The Locus grave abuse of discretion amounting to lack or excess of jurisdiction
Standi To Maintain The Present Action on the part of any branch or instrumentality of the Government.

The gist of the question of standing is whether a party has "alleged such a The Court does not agree with the posture of the respondent
personal stake in the outcome of the controversy as to assure that concrete COMELEC that the issue involved in the present petition is a political
adverseness which sharpens the presentation of issues upon which the court question beyond the jurisdiction of this Court to review. As the
so largely depends for illumination of difficult constitutional questions. 23 Since leading case of Taada vs. Cuenco26 put it, political questions are
the implementation of the assailed resolution obviously involves the concerned with "issues dependent upon the wisdom, not legality of a
expenditure of funds, the petitioner and the petitioners-in-intervention, as particular measure."
taxpayers, possess the requisite standing to question its validity as they have
sufficient interest in preventing the illegal expenditure of money raised by The issue raised in the present petition does not merely concern the wisdom
taxation.24 In essence, taxpayers are allowed to sue where there is a claim of of the assailed resolution but focuses on its alleged disregard for applicable
illegal disbursement of public funds, or that public statutory and constitutional provisions. In other words, that the petitioner and
money is being deflected to any improper purpose, or where the petitioners the petitioners-in-intervention are questioning the legality of the respondent
seek to restrain the respondent from wasting public funds through the COMELECs administrative issuance will not preclude this Court from
enforcement of an invalid or unconstitutional law. 25 exercising its power of judicial review to determine whether or not there was
grave abuse of discretion amounting to lack or excess of jurisdiction on the
Most of the petitioners-in-intervention are also representatives of major part of the respondent COMELEC in issuing Resolution No. 6712. Indeed,
political parties that have participated in the May 10, 2004 elections. On the administrative issuances must not override, supplant or modify the law, but
other hand, petitioners-in-intervention Concepcion and Bernas represent the must remain consistent with the law they intend to carry out.27 When the
National Citizens Movement for Free Elections (NAMFREL), which is the grant of power is qualified, conditional or subject to limitations, the issue of
citizens arm authorized to conduct an "unofficial" quick count during the said whether the prescribed qualifications or conditions have been met or the
elections. They have sufficient, direct and personal interest in the manner by limitations respected, is justiciable the problem being one of legality or
which the respondent COMELEC would conduct the elections, including the validity, not its wisdom.28 In the present petition, the Court must pass upon
counting and canvassing of the votes cast therein. the petitioners contention that Resolution No. 6712 does not have adequate
statutory or constitutional basis.
Moreover, the petitioners-in-intervention Drilon and De Venecia are,
respectively, President of the Senate and Speaker of the House of Although not raised during the oral arguments, another procedural issue that
Representatives, the heads of Congress which is exclusively authorized by has to be addressed is whether the substantive issues had been rendered
the Constitution to canvass the votes for President and Vice-President. They moot and academic. Indeed, the May 10, 2004 elections have come and
have the requisite standing to prevent the usurpation of the constitutional gone. Except for the President and Vice-President, the newly- elected
prerogative of Congress. national and local officials have been proclaimed. Nonetheless, the Court
finds it necessary to resolve the merits of the substantive issues for future
The Issue Raised By The Petition Is Justiciable guidance of both the bench and bar.29 Further, it is settled rule that courts will
decide a question otherwise moot and academic if it is "capable of repetition,
yet evading review."30
Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial
review by providing that:
The Respondent COMELEC Committed Grave Abuse Of Discretion
SEC. 1. The judicial power shall be vested in one Supreme Court Amounting To Lack Or Excess Of Jurisdiction In Issuing Resolution No.
and in such lower courts as may be established by law. 6712

The preliminary issues having been thus resolved, the Court shall proceed to
Judicial power includes the duty of the courts of justice to settle
determine whether the respondent COMELEC committed grave abuse of
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been discretion amounting to lack or excess of jurisdiction in promulgating the
assailed resolution.
The Court rules in the affirmative. the votes for the President and Vice-President, ahead of the canvassing of
the same votes by Congress.
An administrative body or tribunal acts without jurisdiction if it does not have
the legal power to determine the matter before it; there is excess of Parenthetically, even the provision of Rep. Act No. 8436 confirms the
jurisdiction where the respondent, being clothed with the power to determine constitutional undertaking of Congress as the sole body tasked to canvass
the matter, oversteps its authority as determined by law.31 There is grave the votes for the President and Vice-President. Section 24 thereof provides:
abuse of discretion justifying the issuance of the writ of certiorari when there
is a capricious and whimsical exercise of his judgment as is equivalent to SEC. 24. Congress as the National Board of Canvassers for
lack of jurisdiction.32 President and Vice-President. -- The Senate and the House of
Representatives, in joint public session, shall compose the national
First. The assailed resolution usurps, under the guise of an "unofficial" board of canvassers for president and vice-president. The returns of
tabulation of election results based on a copy of the election returns, the sole every election for president and vice-president duly certified by the
and exclusive authority of Congress to canvass the votes for the election of board of canvassers of each province or city, shall be transmitted to
President and Vice-President. Article VII, Section 4 of the Constitution the Congress, directed to the president of the Senate. Upon receipt
provides in part: of the certificates of canvass, the president of the Senate shall, not
later than thirty (30) days after the day of the election, open all the
The returns of every election for President and Vice-President duly certificates in the presence of the Senate and the House of
certified by the board of canvassers of each province or city, shall be Representatives in joint public session, and the Congress upon
transmitted to the Congress, directed to the President of the Senate. determination of the authenticity and the due execution thereof in the
Upon receipt of the certificates of canvass, the President of the manner provided by law, canvass all the results for president and
Senate shall, not later than thirty days after the day of the election, vice-president by consolidating the results contained in the data
open all the certificates in the presence of the Senate and the House storage devices submitted by the district, provincial and city boards
of Representatives in joint public session, and the Congress, upon of canvassers and thereafter, proclaim the winning candidates for
determination of the authenticity and due execution thereof in the president and vice-president.
manner provided by law, canvass the votes.
The contention of the COMELEC that its tabulation of votes is not prohibited
As early as January 28, 2004, Senate President Franklin M. Drilon already by the Constitution and Rep. Act No. 8436 as such tabulation is "unofficial,"
conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that is puerile and totally unacceptable. If the COMELEC is proscribed from
the respondent COMELEC could not and should not conduct any "quick conducting an official canvass of the votes cast for the President and Vice-
count" of the votes cast for the positions of President and Vice-President. In President, the COMELEC is, with more reason, prohibited from making an
his Letter dated February 2, 200433 addressed to Chairman Abalos, Senate "unofficial" canvass of said votes.
President Drilon reiterated his position emphasizing that "any quick count to
be conducted by the Commission on said positions would in effect constitute The COMELEC realized its folly and the merits of the objection of the Senate
a canvass of the votes of the President and Vice-President, which not only President on the constitutionality of the resolution that it decided not to
would be pre-emptive of the authority of Congress, but would also be lacking conduct an "unofficial" quick count of the results of the elections for President
of any constitutional authority."34 and Vice-President. Commissioner Sadain so declared during the hearing:

Nonetheless, in disregard of the valid objection of the Senate President, the JUSTICE PUNO:
COMELEC proceeded to promulgate the assailed resolution. Such resolution
directly infringes the authority of Congress, considering that Section 4 thereof The word you are saying that within 36 hours after election, more or
allows the use of the third copy of the Election Returns (ERs) for the less, you will be able to tell the people on the basis of your quick
positions of President, Vice-President, Senators and Members of the House count, who won the election, is that it?
of Representatives, intended for the COMELEC, as basis for the encoding
and transmission of advanced precinct results, and in the process, canvass COMM. SADAIN:
Well, its not exactly like that, Your Honor. Because the fact of These was relayed to us Your Honor and their objection or request
winning the election would really depend on the canvassed results, rather was for us to refrain from consolidating and publishing the
but probably, it would already give a certain degree of comfort to results for presidential and vice-presidential candidates which we
certain politicians to people rather, as to who are leading in the have already granted Your Honors. So, there is going to be no
elections, as far as Senator down are concerned, but not to consolidation and no publication of the
President and Vice-President.
COMM. SADAIN:
JUSTICE PUNO:
Reason behind being that it is actually Congress that canvass that
So as far as the Senatorial candidates involved are concerned, but the official canvass for this and proclaims the winner.36
you dont give this assurance with respect to the Presidential and
Vice-Presidential elections which are more important? Second. The assailed COMELEC resolution contravenes the constitutional
provision that "no money shall be paid out of the treasury except in
COMM. SADAIN: pursuance of an appropriation made by law."37

In deference to the request of the Senate President and the House By its very terms, the electronic transmission and tabulation of the election
Speaker, Your Honor. According to them, they will be the ones results projected under Resolution No. 6712 is "unofficial" in character,
canvassing and proclaiming the winner, so it is their view that we will meaning "not emanating from or sanctioned or acknowledged by the
be pre-empting their canvassing work and the proclamation of the government or government body.38 Any disbursement of public funds to
winners and we gave in to their request.35 implement this project is contrary to the provisions of the Constitution and
Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of
the COMELEC of its funds appropriated for the AES for the "unofficial" quick
count project may even be considered as a felony under Article 217 of the
Revised Penal Code, as amended.39
JUSTICE CALLEJO, [SR.]:

Irrefragably, the implementation of the assailed resolution would entail, in


Perhaps what you are saying is that the system will minimize
"dagdag-bawas" but not totally eradicate "dagdag-bawas"? due course, the hiring of additional manpower, technical services and
acquisition of equipment, including computers and software, among others.
According to the COMELEC, it needed 55,000,000 to operationalize the
COMM. SADAIN: project, including the encoding process.40 Hence, it would necessarily involve
the disbursement of public funds for which there must be the corresponding
Yes, Your Honor. appropriation.

JUSTICE CALLEJO, [SR.]: The COMELEC posited during the hearing that the 2003 General
Appropriations Act has appropriated the amount needed for its "unofficial"
Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there tabulation. We quote the transcript of stenographic notes taken during the
was a conference between the Speaker and the Senate President hearing:
and the Chairman during which the Senate President and the
Speaker voice[d] their objections to the electronic transmission JUSTICE VITUG:
results system, can you share with us the objections of the two
gentlemen? And you mentioned earlier something about 55 million not being paid
as yet?
COMM. SADAIN:
COMM. SADAIN:
This is an extra amount that we will be needing to operationalize. JUSTICE CARPIO:

JUSTICE VITUG: Now, the encoding is crucial; without the encoding, the entire project
collapses?
And this has not yet been done?
COMM. SADAIN:
COMM. SADAIN:
Yes.42
It has not yet been done, Your Honor.
Inexplicably, Commissioner Sadain contradicted himself when he said that its
JUSTICE VITUG: Financial Department had already found the money, but that proper
documentation was forthcoming:
Would you consider the funds that were authorized by you under the
General Appropriations Act as capable of being used for this JUSTICE CARPIO:
purpose?
Just a clarification. You stated that you signed already the main
COMM. SADAIN: contract for 300 million but you have not signed the 55 million
supplemental contract for the encoding?
Yes, thats our position, Your Honor.41
COMM. SADAIN:
But then the COMELEC, through Commissioner Sadain, admitted during the
said hearing that although it had already approved the assailed resolution, it Yes, Your Honor.
was still looking for the 55,000,000 needed to operationalize the project:
JUSTICE CARPIO:
JUSTICE CARPIO:
Because you still dont have the money for that?
Just a clarification. You stated that you signed already the main
contract for 300 million but you have not signed the 55 million COMM. SADAIN:
supplemental contract for the encoding?
Well, yes, we are trying to determine where we can secure the
COMM. SADAIN: money.

Yes, Your Honor. JUSTICE CARPIO:

JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project
collapses?
Because you still dont have the money for that?
COMM. SADAIN:
COMM. SADAIN:
Yes.
Well, yes, we are trying to determine where we can secure the
money. JUSTICE CARPIO:
So, you have two (2) days to look for the 55 million, you have signed other funds to be used for national elections may not be proper for
the contract on the main contract and if you dont get that 55 million, realignment. That is why I am saying that the funds to be used for
that 300 million main contract goes to waste, because you cannot Phase III should properly come from the modernization. The other
encode? reservation is that the Election Officers are now plagued with so
much work such as the preparation of the list of voters and their
COMM. SADAIN: concern in their respective areas. They were saying to me, specially
so in my own region, that to burden them with another training at this
Its just a matter of proper documentation, Your Honor, because I point in time will make them loose (sic) focus on what they are really
was informed by our Finance Department that the money is there. doing for the national elections and what they are saying is that they
should not be subjected to any training anymore. And they also said
that come canvassing time, their priority would be to canvass first
JUSTICE CARPIO: before they prepare the certificate of votes to be fed to the encoders
[to be fed to the encoders] for electronic transmission. I share the
So, you have found the money already? sentiments of our people in the field. That is also one of my
reservations. Thank you.
COMM. SADAIN:
Comm. Garcillano:
Yes, Your Honor.43
I also have my observations regarding the financial restraint that we
Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the are facing if the money that is going to be used for this is taken from
Commissioners expressed their serious concerns about the lack of funds for the Phase II, I dont think there is money left.
the project, the propriety of using the funds for Phase III of its modernization,
and the possibility of realigning funds to finance the project: Comm. Borra:

Comm. Tuason: There is no more money in Phase II because the budget for Phase II
is 1.3 Billion. The award on the contract for Phase II project is 1.248
May I just request all the parties who are in here na whatever is said billion. So the remaining has been allocated for additional expenses
here should be confined within the four walls of this room and the for the technical working group and staff for Phase II.
minutes so that walang masyadong problema.
Comm. Garcillano:
Comm. Borra:
I also have one problem. We have to have additional people to man
Sa akin lang, we respect each others opinion. I will not make any this which I think is already being taken cared of. Third is, I know that
observations. I will just submit my own memo to be incorporated in this will disrupt the canvassing that is going to be handled by our EO
the minutes. and Election Assistant. I do not know if it is given to somebody
(inaudible)
Comm. Tuason:
Comm. Tuason:
Commissioner Borra will submit a comment to be attached to the
minutes but not on the resolution. Ako naman, I will just make it on Those are your reservations.
record my previous reservation. I do not have any objection as to the
Phase III modernization project itself. My main concern is the budget. Comm. Barcelona:
I would like to make it on record that the budget for Phase III should
be taken from the modernization program fund because Phase III is
definitely part of the modernization project. Other funds, for instance
As far as I am concerned, I also have my reservations because I people who will really be doing the ministerial, almost mechanical,
have the same experience as Commissioner Tuason when I went to work of encoding and transmitting the election results. Yun lang.44
Region IX and Caraga. Our EOs and PES expressed apprehension
over the additional training period that they may have to undergo We have reviewed Rep. Act No. 9206, the General Appropriations Act, which
although, they say, that if that is an order they will comply but it will took effect on April 23, 2003 and find no appropriation for the project of the
be additional burden on them. I also share the concern of COMELEC for electronic transmission of "unofficial" election results. What is
Commissioner Tuason with regard to the budget that should be appropriated therein is the amount of 225,000,000 of the capital outlay for
taken from the modernization budget. the modernization of the electoral system.

Comm. Borra:
B. PROJECTS Maintenance & Other Capita
For the minutes, my memo is already prepared. I will submit it in Operating Expenses Outlay
detail. On three counts naman yan eh legal, second is
technical/operational and third is financial. I. Locally-Funded Projects
a. For the Modernization of Electoral
Comm. Sadain: 225,000,0
System

Ako naman, for my part as the CIC for Phase III, we were left with no b. FY 2003 Preparatory Activities for
250,000,000
choice but to implement Phase III inasmuch as expenses has National Elections
already been incurred in Phase III to the tune of almost 100% at the
c. Upgrading of Voters Database 125,000,000
time when the Phase II contract was nullified. So if we stop the
implementation of Phase III just because Phase II was nullified, d. Conduct of Special Election to fill
which means that there would be no consolidation and accounting the vacancy in the Third District of 6,500,000
consolidation for the machines, then it would be again 300 million Cavite
pesos down the drain. Necessarily there would be additional
expense but we see this as a consequence of the loss of Phase II. I e. Implementation of Absentee
300,000,000
share the view of Comm. Tuason that as much as possible this Voting Act of 2003 (RA 9189)
should be taken from the modernization fund as much as this is
========== ========
properly modernization concern. However, I would like to open
Sub-Total, Locally-Funded Projects 681,500,000 225,000,0
myself to the possibility na in case wala talaga, we might explore the
possibility of realigning funds although that might not (inaudible).
Now with regards the legality, I think what Commissioner Borra has Under paragraph 3 of the special provisions of Rep. Act No. 9206, the
derived his opinion but I would like to think the legality issue must amount of 225,000,000 shall be used primarily for the establishment of the
have been settled already as early as when we approved the AES prescribed under Rep. Act No. 8436, viz:
modernization program involving all three phases although we also
grant the benefit of the argument for Commissioner Borra if he thinks 3. Modernization of Electoral System. The appropriations herein
that there is going to be a legal gap for the loss of Phase II. With authorized for the Modernization of the Electoral System in the
regards the concern with the Election Officers, I also share the same amount of Two Hundred Twenty-Five Million Pesos
concern. In fact, on this matter alone, we try to make the GI as (225,000,000.00) shall be used primarily for the establishment of
simple as possible so that whatever burden we will be giving to the the automated election system, prescribed under Republic Act No.
EOs and EAs will be minimized. As in fact, we will be recommending 8436, particularly for the process of voting, counting of votes and
that the EOs will no longer be bothered to attend the training. They canvassing/consolidation of results of the national and local
can probably just sit in for the first hour and then they can go on with elections.46
their normal routine and then leave the encoders as well as the
reception officers to attend the training because there (sic) are the
Section 52 of Rep. Act No. 9206 proscribes any change or modification in the including the respondent COMELEC itself, is authorized to use a copy of the
expenditure items authorized thereunder. Thus: election returns for purposes of conducting an "unofficial" count. In addition,
the second or third copy of the election returns, while required to be delivered
Sec. 52. Modification of Expenditure Components. Unless to the COMELEC under the aforementioned laws, are not intended for
specifically authorized in this Act, no change or modification shall be undertaking an "unofficial" count. The aforesaid COMELEC copies are
made in the expenditure items in this Act and other appropriations archived and unsealed only when needed by the respondent COMELEC to
laws unless in cases of augmentation from savings in appropriations verify election results in connection with resolving election disputes that may
as authorized under Section 25(5), Article VI of the 1987 Philippine be imminent. However, in contravention of the law, the assailed Resolution
Constitution. authorizes the so-called Reception Officers (RO), to open the second or third
copy intended for the respondent COMELEC as basis for the encoding and
transmission of advanced "unofficial" precinct results. This not only violates
Neither can the money needed for the project be taken from the COMELECs
the exclusive prerogative of NAMFREL to conduct an "unofficial" count, but
savings, if any, because it would be violative of Article VI, Section 25 (5) 47 of
also taints the integrity of the envelopes containing the election returns, as
the 1987 Constitution.
well as the returns themselves, by creating a gap in its chain of custody from
the Board of Election Inspectors to the COMELEC.
The power to augment from savings lies dormant until authorized by law. 48 In
this case, no law has, thus, far been enacted authorizing the respondent
Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the
COMELEC to transfer savings from another item in its appropriation, if there
COMELEC as the statutory basis for the assailed resolution, does not cover
are any, to fund the assailed resolution. No less than the Secretary of the
Senate certified that there is no law appropriating any amount for an the use of the latest technological and election devices for "unofficial"
"unofficial" count and tabulation of the votes cast during the May 10, 2004 tabulations of votes. Moreover, the COMELEC failed to notify the authorized
representatives of accredited political parties and all candidates in areas
elections:
affected by the use or adoption of technological and electronic devices not
less than thirty days prior to the effectivity of the use of such devices. Section
CERTIFICATION 52(i) reads:

I hereby certify that per records of the Senate, Congress has not SEC. 52. Powers and functions of the Commission on Elections. In
legislated any appropriation intended to defray the cost of an addition to the powers and functions conferred upon it by the
unofficial count, tabulation or consolidation of the votes cast during Constitution, the Commission shall have exclusive charge of the
the May 10, 2004 elections. enforcement and administration of all laws relative to the conduct of
elections for the purpose of ensuring free, orderly and honest
May 11, 2004. Pasay City, Philippines. elections, and shall :

What is worrisome is that despite the concerns of the Commissioners during


its En Banc meeting on April 27, 2004, the COMELEC nevertheless
approved the assailed resolution the very next day. The COMELEC had not (i) Prescribe the use or adoption of the latest technological
executed any supplemental contract for the implementation of the project and electronic devices, taking into account the situation
with PMSI. Worse, even in the absence of a certification of availability of prevailing in the area and the funds available for the
funds for the project, it approved the assailed resolution. purpose: Provided, That the Commission shall notify the
authorized representatives of accredited political parties and
Third. The assailed resolution disregards existing laws which authorize candidates in areas affected by the use or adoption of
solely the duly-accredited citizens arm to conduct the "unofficial" counting of technological and electronic devices not less than thirty days
votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. prior to the effectivity of the use of such devices.
8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited
citizens arm - in this case, NAMFREL - is exclusively authorized to use a
copy of the election returns in the conduct of an "unofficial" counting of the
votes, whether for the national or the local elections. No other entity,
From the clear terms of the above provision, before the COMELEC may JUSTICE CARPIO:
resort to and adopt the latest technological and electronic devices for
electoral purposes, it must act in accordance with the following conditions: Now, how many candidates are there nationwide now?

(a) Take into account the situation prevailing in the area and the COMM. SADAIN:
funds available for the purpose; and,
I must admit you Honor we were not able to notify the candidates but
(b) Notify the authorized representatives of accredited political we notified the politicians.
parties and candidates in areas affected by the use or adoption of
technological and electronic devices not less than thirty days prior to
JUSTICE CARPIO:
the effectivity of the use of such devices.
Yes, but what does the law state? Read the law please.
It is quite obvious that the purpose of this provision is to accord to all political
parties and all candidates the opportunity to object to the effectiveness of the
proposed technology and devices, and, if they are so minded not to object, to COMM. SADAIN:
allow them ample time to field their own trusted personnel especially in far
flung areas and to take other necessary measures to ensure the reliability of Yes, Your Honor. I understand that it includes candidates.
the proposed electoral technology or device.
JUSTICE CARPIO:
As earlier pointed out, the assailed resolution was issued by the COMELEC
despite most of the Commissioners apprehensions regarding the legal, And there are how many candidates nationwide running in this
operational and financial impediments thereto. More significantly, since election?
Resolution No. 6712 was made effective immediately a day after its issuance
on April 28, 2004, the respondent COMELEC could not have possibly COMM. SADAIN:
complied with the thirty-day notice requirement provided under Section 52(i)
of the Omnibus Election Code. This indubitably violates the constitutional
Hundreds of thousands, Your Honor.
right to due process of the political parties and candidates. The Office of the
Solicitor General (OSG) concedes this point, as it opines that "the authorized
representatives of accredited political parties and candidates should have JUSTICE CARPIO:
been notified of the adoption of the electronic transmission of election returns
nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday Hundreds of thousands, so you mean you just notified the political
and Good Friday, pursuant to Section 52(i) of the Omnibus Election Code."51 parties not the candidates?
Furthermore, during the hearing on May 18, 2004, Commissioner Sadain,
who appeared for the COMELEC, unabashedly admitted that it failed to notify COMM. SADAIN:
all the candidates for the 2004 elections, as mandated by law:
Yes, Your Honor.
JUSTICE CARPIO:
JUSTICE CARPIO:
You stated that you have notified in writing all the political parties and
candidates as required in Section 52 (i)? And you think that is substantial compliance, you would notify how
many political parties as against hundreds of thousands of
COMM. SADAIN: candidates?

Yes, Your Honor. COMM. SADAIN:


Yes, Your Honor, we notified the major political parties, Your Honor. Transmission, Consolidation and Dissemination System to be conducted by
the COMELEC appear to have been sent out in the late afternoon of April 5,
JUSTICE CARPIO: 2004, after office hours. There is no showing that all the political parties
attended the Field Test, or received the invitations. More importantly, the said
invitations did not contain a formal notice of the adoption of a technology, as
Only the major political parties?
required by Section 52(i) of the Omnibus Election Code.55
COMM. SADAIN:
Fifth. The assailed resolution has no constitutional and statutory basis. That
respondent COMELEC is the sole body tasked to "enforce and administer all
Including party list? laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall"56 and to ensure "free, orderly, honest,
JUSTICE CARPIO: peaceful and credible elections"57 is beyond cavil. That it possesses the
power to promulgate rules and regulations in the performance of its
But not the candidates, individual candidates? constitutional duties is, likewise, undisputed. However, the duties of the
COMELEC under the Constitution, Rep. Act No. 7166, and other election
COMM. SADAIN: laws are carried out, at all times, in its official capacity. There is no
constitutional and statutory basis for the respondent COMELEC to undertake
a separate and an "unofficial" tabulation of results, whether manually or
We were not able to do that, Your Honor, I must admit.
electronically. Indeed, by conducting such "unofficial" tabulation of the results
of the election, the COMELEC descends to the level of a private
JUSTICE CARPIO: organization, spending public funds for the purpose. Besides, it is absurd for
the COMELEC to conduct two kinds of electoral counts a slow but "official"
So, you did not notify hundreds of thousands of candidates? count, and an alleged quicker but "unofficial" count, the results of each may
substantially differ.
COMM. SADAIN:
Clearly, the assailed resolution is an implementation of Phase III of the
No, Your Honors.52 modernization program of the COMELEC under Rep. Act No. 8436. Section
2 of the assailed resolution expressly refers to the Phase III-Modernization
The respondent COMELEC has, likewise, failed to submit any resolution or Project of the COMELEC. Since this Court has already scrapped the contract
document to prove that it had notified all political parties of the intended for Phase II of the AES, the COMELEC cannot as yet implement the Phase
adoption of Resolution No. 6712, in compliance with Section 52(i) of the III of the program. This is so provided in Section 6 of Rep. Act No. 8436.
Omnibus Election Code. This notwithstanding the fact that even long before
the issuance of the assailed resolution, it had admittedly entered into a SEC. 6. Authority to Use an Automated Election System. -- To carry out the
contract on April 15, 200353 and acquired facilities pertaining to the above-stated policy, the Commission on Elections, herein referred to as the
implementation of the electronic transmission and official tabulation of Commission, is hereby authorized to use an automated election system,
election results. As correctly pointed out by the petitioners-in-intervention, the herein referred to as the System, for the process of voting, counting of votes
invitations dated January 15, 2004 regarding the January 20, 2004 and canvassing/consolidation of results of the national and local elections:
COMELEC Conference with the political parties on election security Provided, however, That for the May 11, 1998 elections, the System shall be
measures did not mention electronic transmission of advanced results, much applicable in all areas within the country only for the positions of president,
less the formal adoption of the purpose of the conference. Such "notices" vice-president, senators and parties, organizations or coalitions participating
merely invited the addressee thereof or its/his authorized representative to a under the party-list system.
conference where the COMELEC would show a sample of the official ballot
to be used in the elections, discuss various security measures that To achieve the purpose of this Act, the Commission is authorized to procure
COMELEC had put in place, and solicit suggestions to improve the by purchase, lease or otherwise, any supplies, equipment, materials and
administration of the polls.54 Further, the invitations purportedly sent out to services needed for the holding of the elections by an expedited process of
the political parties regarding the April 6, 2004 Field Test of the Electronic public bidding of vendors, suppliers or lessors: Provided, That the accredited
political parties are duly notified of and allowed to observe but not to at times excluded and/or deferred and not tallied, long after the pre-
participate in the bidding. If in spite of its diligent efforts to implement this proclamation controversies are resolved by the canvass boards and the
mandate in the exercise of this authority, it becomes evident by February 9, COMELEC.
1998 that the Commission cannot fully implement the automated election
system for national positions in the May 11, 1998 elections, the elections for On the other hand, under the assailed resolution, the precinct results of each
both national and local positions shall be done manually except in the city and municipality received by the ETCs would be immediately
Autonomous Region in Muslim Mindanao (ARMM) where the automated electronically transmitted to the NCC. Such data, which have not undergone
election system shall be used for all positions. the process of canvassing, would expectedly be dissimilar to the data on
which the official count would be based.
The AES provided in Rep. Act No. 8436 constitutes the entire "process of
voting, counting of votes and canvassing/consolidation of results of the Resultantly, the official and unofficial canvass, both to be administered by the
national and local elections" corresponding to the Phase I, Phase II and respondent COMELEC, would most likely not tally. In the past elections, the
Phase III of the AES of the COMELEC. The three phases cannot be effected "unofficial" quick count conducted by the NAMFREL had never tallied with
independently of each other. The implementation of Phase II of the AES is a that of the official count of the COMELEC, giving rise to allegations of
condition sine qua non to the implementation of Phase III. The nullification by "trending" and confusion. With a second "unofficial" count to be conducted by
this Court of the contract for Phase II of the System effectively put on hold, at the official election body, the respondent COMELEC, in addition to its official
least for the May 10, 2004 elections, the implementation of Phase III of the count, allegations of "trending," would most certainly be aggravated. As a
AES. consequence, the electoral process would be undermined.

Sixth. As correctly observed by the petitioner, there is a great possibility that The only intimated utility claimed by the COMELEC for the "unofficial"
the "unofficial" results reflected in the electronic transmission under the electronic transmission count is to avert the so-called "dagdag-bawas." The
supervision and control of the COMELEC would significantly vary from the purpose, however, as the petitioner properly characterizes it, is a total sham.
results reflected in the COMELEC official count. The latter follows the The Court cannot accept as tenable the COMELECs profession that from
procedure prescribed by the Omnibus Election Code, which is markedly the results of the "unofficial" count, it would be able to validate the credibility
different from the procedure envisioned in the assailed resolution. of the official tabulation. To sanction this process would in effect allow the
COMELEC to preempt or prejudge an election question or dispute which has
Under the Omnibus Election Code, after the votes are cast and the polls not been formally brought before it for quasi-judicial cognizance and
closed, the Board of Election Inspectors (BEI) for each precinct is enjoined to resolutions.
publicly count the votes and record the same simultaneously on the tally
boards and on two sets of ERs. Each set of the ER is prepared in eight (8) Moreover, the Court doubts that the problem of "dagdag-bawas" could be
copies. After the ERs are accomplished, they are forwarded to the Municipal addressed by the implementation of the assailed resolution. It is observed
Board of Canvassers (MBC), which would canvass all the ERs and proclaim that such problem arises because of the element of human intervention. In
the elected municipal officials. All the results in the ERs are transposed to the the prevailing set up, there is human intervention because the results are
statements of votes (SOVs) by precinct. These SOVs are then transferred to manually tallied, appreciated, and canvassed. On the other hand, the
the certificates of canvass (COCs) which are, in turn, brought to the electronic transmission of results is not entirely devoid of human intervention.
Provincial Board of Canvassers (PBC). Subsequently, the PBC would The crucial stage of encoding the precinct results in the computers prior to
canvass all the COCs from various municipalities and proclaim the elected the transmission requires human intervention. Under the assailed resolution,
provincial officials, including those to the House of Representatives. The encoding is accomplished by employees of the PMSI. Thus, the problem of
PBC would then prepare two sets of Provincial Certificates of Canvass "dagdag-bawas" could still occur at this particular stage of the process.
(PCOCs). One set is forwarded to Congress for its canvassing of the results
for the President and Vice-President. The other set is forwarded to the As it stands, the COMELEC "unofficial" quick count would be but a needless
COMELEC for its canvassing of the results for Senators.
duplication of the NAMFREL "quick" count, an illegal and unnecessary waste
of government funds and effort.
As the results are transposed from one document to another, and as each
document undergoes the procedure of canvassing by various Boards of Conclusion
Canvassers, election returns and certificates of canvass are objected to and
The Court is mindful of the salutary goals that the respondent COMELEC
had envisioned in promulgating the assailed resolution, to wit: [t]o renew the
publics confidence in the Philippine Electoral System by:

1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation;

4. Providing timely, fast and accurate information to provide the


public re election results;

5. Enabling the validation of its own official count and other counts;

6. Having an audit trail in its own account.58

Doubtless, these are laudable intentions. 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.59

WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712


dated April 28, 2004 issued by the Commission on Elections (COMELEC) En
Banc is hereby declared NULL AND VOID.

SO ORDERED.
NATIONAL ARTIST VS THE EXEC SECRETARY Sec. 8. The Commission. A National Commission for Culture and Arts is
hereby created to formulate policies for the development of culture and arts;
Art has traditionally been viewed as the expression of everything that is true, implement these policies in coordination with affiliated cultural agencies;
good and beautiful. As such, it is perceived to evoke and produce a spirit of coordinate the implementation of programs of these affiliated agencies;
harmony. Art is also considered as a civilizing force, a catalyst of nation- administer the National Endowment Fund for Culture and Arts (NEFCA);
building. The notion of art and artists as privileged expressions of national encourage artistic creation within a climate of artistic freedom; develop and
culture helped shape the grand narratives of the nation and shared symbols promote the Filipino national culture and arts; and preserve Filipino cultural
of the people. The artist does not simply express his/her own individual heritage. The Commission shall be an independent agency. It shall render an
inspiration but articulates the deeper aspirations of history and the soul of the annual report of its activities and achievements to the President and to
people.2 The law recognizes this role and views art as something that Congress.
"reflects and shapes values, beliefs, aspirations, thereby defining a peoples
national identity."3 If unduly politicized, however, art and artists could stir Among the specific mandates of the NCCA under Republic Act No. 7356 is to
controversy and may even cause discord, as what happened in this case. "extend recognition of artistic achievement through awards, grants and
services to artists and cultural groups which contribute significantly to the
The Antecedents Filipinos cultural legacy."7 In connection with this mandate, the NCCA is
vested with the power to "advise the President on matters pertaining to
culture and the arts, including the creation of a special decoration or award,
History of the Order of National Artists
for persons who have significantly contributed to the development and
promotion of Philippine culture and arts."8
On April 27, 1972, former President Ferdinand E. Marcos issued
Proclamation No. 10014 and, upon recommendation of the Board of Trustees
As both the CCP Board of Trustees and the NCCA have been mandated by
of the Cultural Center of the Philippines (CCP), created the category of
law to promote, develop and protect the Philippine national culture and the
Award and Decoration of National Artist to be awarded to Filipinos who have
arts, and authorized to give awards to deserving Filipino artists, the two
made distinct contributions to arts and letters. In the same issuance,
Fernando Amorsolo was declared as the first National Artist. bodies decided to team up and jointly administer the National Artists Award. 9
Thereafter, they reviewed the guidelines for the nomination, selection and
administration of the National Artists Award. Pursuant to their respective
On May 15, 1973, Proclamation No. 11445 was issued. It amended powers to draft and promulgate rules, regulations and measures to guide
Proclamation No. 1001 "by creating a National Artists Awards Committee" them in their deliberations in the choice of National Artists, the CCP and
that would "administer the conferment of the category of National Artist" upon NCCA adopted the following revised guidelines in September 200710:
deserving Filipino artists. The Committee, composed of members of the
Board of Trustees of the CCP, was tasked to "draft the rules to guide its
4. ADMINISTRATION OF THE AWARD
deliberations in the choice of National Artists, to the end that those who have
created a body of work in the arts and letters capable of withstanding the test
of time will be so recognized." 4.1. The National Commission for Culture and the Arts
(NCCA) shall plan, organize and implement the Order of
National Artists in coordination with the Cultural Center of
The authority of the National Artists Awards Committee to administer the
the Philippines (CCP).
conferment of the National Artist Award was again reiterated in Presidential
Decree No. 2086 issued on June 7, 1973.
4.2. It shall enlist the support and cooperation of private
On April 3, 1992, Republic Act No. 7356, otherwise known as the Law sector experts from the various fields of art to ensure that the
awards are implemented in a successful and impartial
Creating the National Commission for Culture and the Arts, was signed into
manner.
law. It established the National Commission for Culture and the Arts (NCCA)
and gave it an extensive mandate over the development, promotion and
preservation of the Filipino national culture and arts and the Filipino cultural 4.3. The National Artist Award Secretariat shall commission
heritage. The NCCA was tasked with the following: art experts to form a Special Research Group who shall
verify information submitted on nominees and provide (f) must not have been convicted with finality of any
essential data. crime by a court of justice or dismissed for cause by
any organization, whether public or private.
They shall be selected for their specialization and familiarity
with the works and accomplishments of nominated artists. 4.7. The National Artist Award Council of Experts shall be
composed of a maximum of seven (7) members each of the
4.4. The Special Research Group shall be composed of ten seven (7) areas/disciplines. The living National Artists will
(10) to twenty (20) members who have expertise in one or automatically become members in addition to the forty-nine
more fields or disciplines. (49) selected members. These members will constitute the
first deliberation panel and will be invited to evaluate the
nominations and materials submitted by the Special
4.5. The National Artist Award Council of Experts shall be
Research Group.
created before or during the nomination period. It is tasked
to screen nominees and recommend to the NCCA and CCP
Boards the candidates for the Order of National Artists. It 4.8. Any member of the Council of Experts who is nominated
shall be composed of highly regarded peers, scholars, or related to a nominee up to the fourth degree of
(including cultural philosophers and historians), consanguinity or affinity shall inhibit himself/herself from the
academicians, researchers, art critics, and other deliberation process. Likewise, any member may decline to
knowledgeable individuals. A wider age-range of experts participate in the deliberation for any reason or may be
who would have first-hand knowledge of achievements of removed for just cause upon recommendation to the NCCA
nominees shall be considered. Board by at least two thirds (2/3) of the members; in which
case, the National Artist Award Secretariat shall again select
the replacements for those who decline or resigned until the
4.6. The selection of the members of the National Artist
first deliberation panel is completed.
Award Council of Experts shall be based on the following
criteria:
4.9. The list of nominated members of the National Artist
Award Council of Experts shall be reviewed by the National
(a) should have achieved authority, credibility and
Artist Award Secretariat as needed, for purposes of adding
track record in his field(s) of expertise;
new members or replacements.
(b) should have extensive knowledge in his field(s)
4.10. The members of the National Artist Award Council of
and his views on Philippine art and culture must be
Experts shall serve for a fixed term of three (3) years.
national in perspective;

(c) should be a recognized authority in the study or 5. CRITERIA FOR SELECTION


research of Philippine art and culture;
The Order of National Artists shall be given to:
(d) must be willing to devote sufficient time and effort
to the work of the Council; 5.1 Living artists who are Filipino citizens at the time of
nomination, as well as those who died after the
establishment of the award in 1972 but were Filipino citizens
(e) must be willing to sign a non-disclosure
at the time of their death.
statement in order to safeguard the confidentiality of
the deliberations;
5.2 Artists who through the content and form of their works
have contributed in building a Filipino sense of nationhood.
5.3. Artists who have pioneered in a mode of creative 6.2.6. Film and Broadcast Arts direction, writing,
expression or style, thus, earning distinction and making an production design, cinematography, editing, camera work,
impact on succeeding generations of artists. and/or performance.

5.4. Artists who have created a substantial and significant 6.2.7. Architecture, Design and Allied Arts architecture
body of works and/or consistently displayed excellence in design, interior design, industrial arts design, landscape
the practice of their art form thus enriching artistic architecture and fashion design.
expression or style.
6.3. Nominations for the Order of National Artists may be
5.5 Artists who enjoy broad acceptance through: submitted by government and non-government cultural
organizations and educational institutions, as well as private
5.5.1. prestigious national and/or international foundations and councils.
recognition, such as the Gawad CCP Para sa
Sining, CCP Thirteen Artists Award and NCCA Alab 6.4. Members of the Special Research Group, as well as
ng Haraya agencies attached to the NCCA and CCP shall not submit
nominations.
5.5.2. critical acclaim and/or reviews of their works
6.5. NCCA and CCP Board members and consultants and
5.5.3. respect and esteem from peers. NCCA and CCP officers and staff are automatically
disqualified from being nominated.
6. NOMINATION PROCEDURE
6.6. Nominations shall be accepted only when these are
submitted in writing and with proper supporting
6.1. The National Artist Award Secretariat shall announce
documentation, as follows:
the opening of nominations through media releases and
letters to qualified organizations.
6.6.1. A cover letter signed by the head or
6.2. Candidates may be nominated under one or more of the designated representative of the nominating
organization.
following categories:

The cover letter shall be accompanied by a Board


6.2.1. Dance choreography, direction and/or performance.
Resolution approving the nominee concerned with
the said resolution signed by the organization
6.2.2. Music composition, direction, and/or performance. President and duly certified by the Board Secretary.

6.2.3. Theater direction, performance and/or production 6.6.2. A duly accomplished nomination form;
design.
6.6.3. A detailed curriculum vitae of the nominee;
6.2.4. Visual Arts painting, sculpture, printmaking,
photography, installation art, mixed media works, illustration,
comics/komiks, graphic arts, performance art and/or 6.6.4. A list of the nominees significant works
imaging. categorized according to the criteria;

6.6.5. The latest photograph (color or black and


6.2.5. Literature poetry, fiction (short story, novel and play);
white) of the nominee, either 5" x 7" or 8" x 11";
non-fiction (essay, journalism, literary criticism and historical
literature).
6.6.6. Pertinent information materials on the to their respective fields of expertise or disciplines to shortlist
nominees significant works (on CDs, VCDs and the nominees in their disciplines or categories for
DVDs); presentation to the second deliberation panel.

6.6.7. Copies of published reviews; 7.5. The second deliberation panel shall be composed of a
different set of experts from the first deliberation panel three
6.6.8. Any other document that may be required. (3) experts each of the seven (7) areas/discipline and may
include members from varying backgrounds such as critics
and academicians. The achievements of each shortlisted
6.7. Nominations received beyond the announced deadline
nominee shall be presented by one designated member of
for the submission of nominations shall not be considered.
Council of Experts. Then panel deliberates and ranks the
shortlisted nominees according to the order of precedence
6.8. The National Artist Award Secretariat shall announce following the set criteria of the Order of National Artists. In
the opening of nominations through media releases. extreme cases, the Second Deliberation may add new
names to the lists.
6.9. All inquiries and nominations shall be submitted to
7.6. The second deliberation panel may recommend not to
The NATIONAL ARTIST AWARD SECRETARIAT give award in any category if no nominee is found deserving.
The number of awardees shall also depend on the
Office of the Artistic Director Cultural Center of the Philippines Roxas availability of funds. All decisions and recommendations
Boulevard, 1300 Pasay City or The NATIONAL ARTIST AWARD shall be in writing.
SECRETARIAT Office of the Deputy Executive Director National
Commission for Culture and the Arts 633 General Luna Street, Intramuros, 7.7. The recommendations from the Second Deliberation
Manila Panel of the National Artist Award Council of Experts shall
then be presented to the joint boards of NCCA and CCP for
7. SCREENING AND SELECTION PROCESS final selection. The presentors shall prepare their
presentation in writing together with an audio-visual
7.1. The National Artist Award Secretariat shall pre-screen presentation or powerpoint presentation. Written
the nominees based on technical guideline items 5.1, 6.2, interpellations/opinions will be accepted from selected critics.
6.3, 6.4, 6.5 and 6.6. The pre-screening shall not be based The review shall be based on the ranking done by the
on the accomplishments and merits of the nominee. Second Deliberation. The voting shall be across disciplines.
The National Artists will be given the option whether to vote
on all categories or on his/her particular discipline.
7.2. The Special Research Group shall accomplish its task
within six (6) months. The main objective is to verify the
validity of the data, and evaluate the quality, true value and 7.8. Proxy votes will not be allowed in the Selection Process.
significance of works according to the criteria. It shall come Designation of permanent representatives of agencies
up with the updated and comprehensive profiles of nominees should be made at the outset to make them regular Board
reflecting their most outstanding achievements. members of NCCA and thus, may be allowed to cast votes.

7.3. The National Artist Award Secretariat will meet to review 7.9. The list of awardees shall be submitted to the President
the list of nominees for oversights. Consequently, deserving of the Republic of the Philippines for confirmation,
nominees shall be added to the list. proclamation and conferral.

7.4. The first deliberation panel (Council of Experts) shall be 8. PRESENTATION OF THE AWARDS
intra-disciplinary. The panelists shall be grouped according
8.1. The Order of National Artists shall not be conferred nominations for recipients of Honors,"13 including the Order of National
more frequently than every three (3) years. Artists, and presidential awards. The Committee on Honors has been
allowed to "authorize relevant department or government agencies to
8.2. The Order of National Artists shall be conferred by the maintain Honors and/or Awards Committees to process nominations for
President of the Philippines on June 11 or any appropriate Honors and/or Presidential Awards."14 In this connection, Section 2.4(A) of
date in fitting ceremonies to be organized by the National the Implementing Rules and Regulations15 of Executive Order No. 236, s.
Artist Secretariat. 2003, states:

8.3. The medallion of the Order of National Artists and 2.4: Awards Committees
citation shall be given to the honoree during the conferment
ceremony. The cash award of 100,000.00 in cheque shall There shall be two types of awards committees: the Committee on Honors
be given immediately after the ceremony or at another time and the various awards committees in the various units of the government
and place as requested by the honoree. service.

8.4. A posthumous conferral consisting of the medallion and A. The Committee on Honors
citation shall be given to the family or legal heir/s of the
honoree. The cash award of 75,000.00 in cheque shall be The Committee on Honors serves as a National Awards Committee. It is
given to the honorees legal heir/s or a representative composed of the following:
designated by the family immediately after the ceremony or
at another time and place as requested by the family.
The Executive Secretary, Chairman
(Emphases supplied.)
The Secretary of Foreign Affairs, Vice-Chairman
In 1996, the NCCA and the CCP created a National Artist Award Secretariat
composed of the NCCA Executive Director as Chairperson, the CCP
President as Vice-Chairperson, and the NCCA Deputy Executive Director, Head, Presidential Management Staff, member
the CCP Vice-President/Artistic Director, the NCCA National Artist Award
Officer and the CCP National Artist Award Officer as members. They also Presidential Assistant for Historical Affairs, member
centralized with the NCCA all financial resources and management for the
administration of the National Artists Award. They added another layer to the Chief of Presidential Protocol, member
selection process to involve and allow the participation of more members of
the arts and culture sector of the Philippines in the selection of who may be Chief of Protocol, DFA, member
proclaimed a National Artist.
All nominations from the various awards committees must be submitted to
On September 19, 2003, Executive Order No. 236, s. 2003, entitled the Committee on Honors via the Chancellery of Philippine Orders and State
Establishing the Honors Code of the Philippines to Create an Order of Decorations. The Chancellery shall process nominations for the
Precedence of Honors Conferred and for Other Purposes, was issued. The consideration of the Committee on Honors. The Committee on Honors shall
National Artists Award was renamed the Order of National Artists and raised screen and recommend these nominations to the President.
to the level of a Cultural Order, fourth in precedence among the orders and
decorations that comprise the Honors of the Philippines. Executive Order No.
The Committee on Honors shall, as a general rule, serve as a screening
236, s. 2003, recognizes the vital role of the NCCA and the CCP in
committee to ensure that nominations received from the various awards
identifying Filipinos who have made distinct contributions to arts and letters
committees meet two tests: that there has not been an abuse of discretion in
and states that the National Artist recognition is conferred "upon the
making the nomination, and that the nominee is in good standing. Should a
recommendation of the Cultural Center of the Philippines and the National
nomination meet these criteria, a recommendation to the President for
Commission for Culture and the Arts."12 Executive Order No. 236, s. 2003,
conferment shall be made.
further created a Committee on Honors to "assist the President in evaluating
The President of the Philippines takes the recommendations of the On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA,
Committee on Honors in the highest consideration when making the final Undersecretary Vilma Labrador, and the President and Artistic Director of the
decision on the conferment of awards. (Emphasis supplied.) CCP, Mr. Nestor Jardin, was sent to the President.23 The letter stated, thus:

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of May 6, 2009
Executive Order No. 236 Entitled "Establishing the Honors Code of the
Philippines to Create an Order of Precedence of Honors Conferred and for Her Excellency GLORIA MACAPAGAL-ARROYO
Other Purposes" was subsequently issued on June 8, 2005. It amended the President of the Philippines
wording of Executive Order No. 236, s. 2003, on the Order of National Artists Malacaan Palace, Manila
and clarified that the NCCA and the CCP "shall advise the President on the
conferment of the Order of National Artists."
Subject: 2009 Order of National Artist Awardees

Controversy Surrounding the 2009 Dear President Arroyo:


Order of National Artists
We are respectfully submitting a recommendation of the NCCA Board of
Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA
Trustees and CCP Board of Trustees for the Proclamation of the following as
Board of Commissioners and the CCP Board of Trustees was held to 2009 Order of National Artists:
discuss, among others, the evaluation of the 2009 Order of National Artists
and the convening of the National Artist Award Secretariat. The nomination
period was set for September 2007 to December 31, 2007, which was later 1. Mr. MANUEL CONDE+ (Posthumous) Film and
extended to February 28, 2008. The pre-screening of nominations was held Broadcast Arts
from January to March 2008.16
2. Dr. RAMON SANTOS Music
On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18
were considered during the deliberation and a preliminary shortlist19 of 32 3. Mr. LAZARO FRANCISCO+ (Posthumous) Literature
names was compiled.
4. Mr. FEDERICO AGUILAR-ALCUAZ Visual Arts
On April 23, 2009, the Second Deliberation Panel purportedly composed of
an entirely new set of Council of Experts met and shortlisted 13 out of the 32 The above persons were identified by experts in the various fields of arts and
names in the preliminary shortlist.20 On May 6, 2009, the final deliberation culture, including living National Artists. An intensive selection process was
was conducted by the 30-member Final Deliberation Panel comprised of the observed following established practice. In the past, awards were presented
CCP Board of Trustees and the NCCA Board of Commissioners and the by the President at a Ceremony held at the Malacaan Palace followed by a
living National Artists.21 From the 13 names in the second shortlist, a final list program called "Parangal" at the Cultural Center of the Philippines. We also
of four names was agreed upon.22 The final list, according to rank, follows: propose to continue with past practice of celebrating the life and works of the
four (4) Order of National Artists through an exhibit that will open and a
commemorative publication that will be released on the day of the
Name Art Field/Category Number of Votes
proclamation.
nuel Conde (+) Film and Broadcast Arts (Film) 26
We respectfully suggest, subject to Her Excellencys availability, that the
mon Santos Music 19
Proclamation be on June 11, 2009, if possible at the Malacaan Palace.
zaro Francisco (+) Literature 15
Thank you for your kind attention.
derico Aguilar-Alcuaz Visual Arts 15
Very respectfully yours,
(Sgd.) the acknowledgment ceremonies for recognition of the private respondents
VILMA L. LABRADOR as National Artists."
Chairman
National Commission for Culture and the Arts What is the nature and scope of the power of the President to confer the
Order of the National Artists and how should it be exercised? This is the
(Sgd.) essential issue presented in this case. It will determine whether the
NESTOR O. JARDIN proclamation of respondents as National Artists is valid. Preliminary
President and Artistic Director procedural issues on the standing of the petitioners and the propriety of the
Cultural Center of the Philippines24 remedies taken,30 however, call for resolution as a prerequisite to the
discussion of the main question.
According to respondents, the aforementioned letter was referred by the
Office of the President to the Committee on Honors. Meanwhile, the Office of Contention of the Parties
the President allegedly received nominations from various sectors, cultural
groups and individuals strongly endorsing private respondents Cecile A perusal of the pleadings submitted by the petitioners reveals that they are
Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Maosa and Jose an aggrupation of at least three groups, the National Artists, cultural workers
Moreno. The Committee on Honors purportedly processed these and academics, and the Concerned Artists of the Philippines (CAP). The
nominations and invited resource persons to validate the qualifications and National Artists assert an "actual as well as legal interest in maintaining the
credentials of the nominees.25 reputation of the Order of National Artists."31 In particular, they invoke their
right to due process not to have the honor they have been conferred with
The Committee on Honors thereafter submitted a memorandum to then diminished by the irregular and questionable conferment of the award on
President Gloria Macapagal-Arroyo recommending the conferment of the respondents Guidote-Alvarez, Caparas, Maosa and Moreno. For
Order of National Artists on the four recommendees of the NCCA and the petitioners, this would adversely affect their right to live a meaningful life as it
CCP Boards, as well as on private respondents Guidote-Alvarez, Caparas, detracts not only from their right to enjoy their honor as a fruit of their lifelong
Maosa and Moreno. Acting on this recommendation, Proclamation No. 1823 labor but also from the respect of their peers.32
declaring Manuel Conde a National Artist was issued on June 30, 2009.
Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were issued The cultural workers, academics and CAP claim to be Filipinos who are
declaring Lazaro Francisco, Federico AguilarAlcuaz and private respondents deeply concerned with the preservation of the countrys rich cultural and
Guidote-Alvarez, Caparas, Maosa and Moreno, respectively, as National artistic heritage. As taxpayers, they are concerned about the use of public
Artists. This was subsequently announced to the public by then Executive monies for illegal appointments or spurious acts of discretion.33
Secretary Eduardo Ermita on July 29, 2009.26
All of the petitioners claim that former President Macapagal-Arroyo gravely
Convinced that, by law, it is the exclusive province of the NCCA Board of abused her discretion in disregarding the results of the rigorous screening
Commissioners and the CCP Board of Trustees to select those who will be and selection process for the Order of National Artists and in substituting her
conferred the Order of National Artists and to set the standard for entry into own choice for those of the Deliberation Panels. According to petitioners, the
that select group, petitioners instituted this petition for prohibition, certiorari Presidents discretion to name National Artists is not absolute but limited. In
and injunction (with prayer for restraining order) praying that the Order of particular, her discretion on the matter cannot be exercised in the absence of
National Artists be conferred on Dr. Santos and that the conferment of the or against the recommendation of the NCCA and the CCP. In adding the
Order of National Artists on respondents Guidote-Alvarez, Caparas, Maosa names of respondents Caparas, Guidote-Alvarez, Maosa and Moreno while
and Moreno be enjoined and declared to have been rendered in grave abuse dropping Dr. Santos from the list of conferees, the Presidents own choices
of discretion.27 constituted the majority of the awardees in utter disregard of the choices of
the NCCA and the CCP and the arts and culture community which were
In a Resolution28 dated August 25, 2009, the Court issued a status quo arrived at after a long and rigorous process of screening and deliberation.
order29 enjoining "public respondents" "from conferring the rank and title of Moreover, the name of Dr. Santos as National Artist for Music was deleted
the Order of National Artists on private respondents; from releasing the cash from the final list submitted by the NCCA and the CCP Boards without clearly
awards that accompany such conferment and recognition; and from holding indicating the basis thereof. For petitioners, the Presidents discretion to
name National Artists cannot be exercised to defeat the recommendations (Caparas) as National Artist. The function of the NCCA and the CCP Boards
made by the CCP and NCCA Boards after a long and rigorous screening is simply to advise the President. The award of the Order of National Artists
process and with the benefit of expertise and experience. The addition of four is the exclusive prerogative of the President who is not bound in any way by
names to the final list submitted by the Boards of the CCP and the NCCA the recommendation of the NCCA and the CCP Boards. The implementing
and the deletion of one name from the said list constituted a substitution of rules and regulations or guidelines of the NCCA cannot restrict or limit the
judgment by the President and a unilateral reconsideration without clear exclusive power of the President to select the recipients of the Order of
justification of the decision of the First, Second and Final Deliberation Panels National Artists.39
composed of experts.34
For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez
Petitioners further argue that the choice of respondent GuidoteAlvarez was manifested that she was waiving her right to file her comment on the petition
illegal and unethical because, as the then Executive Director of the NCCA and submitted herself to the Courts discretion and wisdom.
and presidential adviser on culture and arts, she was disqualified from even
being nominated.35 Moreover, such action on the part of the former President Respondent Maosa manifested that his creations speak for themselves as
constituted grave abuse of discretion as it gave preferential treatment to his contribution to Filipino cultural heritage and his worthiness to receive the
respondent Guidote-Alvarez by naming the latter a National Artist despite her award. Nonetheless, he expressed his conviction that the Order of National
not having been nominated and, thus, not subjected to the screening process Artists is not a right but a privilege that he would willingly relinquish should he
provided by the rules for selection to the Order of National Artists. Her be found not worthy of it.41
inclusion in the list by the President represented a clear and manifest favor
given by the President in that she was exempted from the process that all Respondent Moreno did not file any pleading despite being given several
other artists have to undergo. According to petitioners, it may be said that the opportunities to do so. Hence, the Court dispensed with his pleadings. 42
President used a different procedure to qualify respondent Guidote-Alvarez.
This was clearly grave abuse of discretion for being manifest and undue bias
violative of the equal protection clause.36 In a Resolution dated July 12, 2011, this Court gave due course to the
petition and required the parties to file their respective memoranda. 43
Respondent Caparas filed his memorandum on September 8, 2011,44 the
Respondent Caparas refutes the contention of the petitioning National Artists
CCP filed its memorandum on September 19, 2011,45 respondent Maosa on
and insists that there could be no prejudice to the latter. They remain to be
September 20, 2011,46 and the Office of the Solicitor General filed a
National Artists and continue to receive the emoluments, benefits and other
manifestation stating that it is adopting its comment as its memorandum on
privileges pertaining to them by virtue of that honor. On the other hand, all
September 21, 2011.47 Respondent Moreno failed to file a Memorandum,
the other petitioners failed to show any material and personal injury or harm hence, the Court resolved to dispense with the same.48 Petitioners filed their
caused to them by the conferment of the Order of National Artists on Memorandum on May 14, 2012.49
respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The rule on
standing may not be relaxed in favor of the petitioners as no question of
constitutionality has been raised and no issue of transcendental importance On the other hand, the original position of the Office of the Solicitor General
is involved.37 (OSG) was similar to that of respondent Caparas.50 In a subsequent
manifestation,51 however, the OSG stated that the current Board of
Commissioners of the NCCA agree with the petitioners that the President
Respondent Caparas further argues that the remedies of prohibition and
cannot honor as a National Artist one who was not recommended by the joint
injunction are improper as the act sought to be enjoined the declaration of
Boards of the NCCA and the CCP. The implementing rules and regulations
respondents Guidote-Alvarez, Caparas, Maosa and Moreno as National
of Executive Order No. 236, s. 2003, recognized the binding character of the
Artists had already been consummated. In particular, respondent Caparas
recommendation of the NCCA and the CCP Boards and limited the authority
was already proclaimed National Artist through Proclamation No. 1827 of the Committee on Honors to the determination that (1) there has been no
issued on July 6, 2009.38 grave abuse of discretion on the part of the NCCA and the CCP Boards in
making the nomination, and (2) the nominee is in good standing. Where a
On the merits, respondent Caparas contends that no grave abuse of nomination meets the said two criteria, a recommendation to the President to
discretion attended his proclamation as National Artist. The former President confer the award shall be made.52
considered the respective recommendations of the NCCA and the CCP
Boards and of the Committee on Honors in eventually declaring him
The OSG further argued that, while the President exercises control over the In this case, we find that the petitioning National Artists will be denied some
NCCA and the CCP, the President has the duty to faithfully execute the laws, right or privilege to which they are entitled as members of the Order of
including the NCCA-CCP guidelines for selection of National Artists and the National Artists as a result of the conferment of the award on respondents
implementing rules of Executive Order No. 236, s. 2003. Moreover, the laws Guidote-Alvarez, Caparas, Maosa and Moreno. In particular, they will be
recognize the expertise of the NCCA and the CCP in the arts and tasked denied the privilege of exclusive membership in the Order of National Artists.
them to screen and select the artists to be conferred the Order of National
Artists. Their mandate is clear and exclusive as no other agency possesses In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the
such expertise.53 Order of National Artists is "an exclusive association of honored individuals."
To ensure the exclusivity of the membership in the Order, a rigid nomination
The OSG also assailed the former Presidents choice of respondent Guidote- and screening process has been established with different sets of renowned
Alvarez for being contrary to Republic Act No. 7356.54 Section 11 of the said artists and respected art critics invited to sit as the Council of Experts for the
law provides: First and Second Deliberation Panels. Moreover, all living National Artists are
given a voice on who should be included in their exclusive club as they
Sec. 11. Membership Restrictions. During his/her term as member of the automatically become members of the Final Deliberation Panel that will vote
Commission, a Commissioner shall not be eligible for any grant, or such on who should be included in the final list to be submitted to the President for
other financial aid from the Commission as an individual: Provided, however, conferment of the Order of National Artists. To allow the untrammeled
That he/she may compete for grants and awards on the same level as other discretion and authority of the President to confer the Order of National
artists one (1) year after his/her term shall have expired. Artists without regard to the stringent screening and rigorous selection
process established by the NCCA and the CCP will diminish, if not negate,
The omission of the word "award" in the first portion of the above provision the exclusive nature of the said Order. It will unduly subject the selection and
conferment of the Order of National Artists to politics rather than to principles
appears to be unintentional as shown by the proviso which states that a
and procedures. It will subvert the transparent and rigorous process and
member may compete for grants and awards only one year after his or her
allow entry to the exclusive Order of National Artists through a secret
term shall have expired. As such, respondent Guidote-Alvarez is restricted
backdoor of lobbying, back channeling and political accommodation.
and disqualified from being conferred the 2009 Order of National Artists. 55

Among the other petitioners, Prof. Gemino Abad presents a unique valid
The Courts Ruling
personal and substantial interest. Like respondents Caparas, Maosa and
Moreno, he was among the 87 nominees for the 2009 Order of National
Standing of the Petitioners Artists. Like respondent Moreno, he made it to the preliminary shortlist. As he
did not make it to the second shortlist, he was not considered by the Final
Standing is the determination of whether a specific person is the proper party Deliberation Panel, more so by the former President.
to bring a matter to the court for adjudication.56 The gist of the question of
standing is whether a party alleges such personal stake in the outcome of the It should be recalled too that respondent Guidote-Alvarez was disqualified to
controversy as to assure that concrete adverseness which sharpens the be nominated for being the Executive Director of the NCCA at that time while
presentation of issues upon which the court depends for illumination of respondents Maosa and Caparas did not make it to the preliminary shortlist
difficult constitutional questions.57 and respondent Moreno was not included in the second shortlist. Yet, the
four of them were treated differently and considered favorably when they
The parties who assail the constitutionality or legality of a statute or an official were exempted from the rigorous screening process of the NCCA and the
act must have a direct and personal interest. They must show not only that CCP and conferred the Order of National Artists. The Committee on Honors
the law or any governmental act is invalid, but also that they sustained or are and the former President effectively treated respondents Guidote-Alvarez,
in immediate danger of sustaining some direct injury as a result of its Caparas, Maosa and Moreno as a preferred class. The special treatment
enforcement, and not merely that they suffer thereby in some indefinite way. accorded to respondents Guidote-Alvarez, Caparas, Maosa and Moreno
They must show that they have been or are about to be denied some right or fails to pass rational scrutiny.60 No real and substantial distinction between
privilege to which they are lawfully entitled or that they are about to be respondents and petitioner Abad has been shown that would justify deviating
subjected to some burdens or penalties by reason of the statute or act from the laws, guidelines and established procedures, and placing
complained of.58 respondents in an exceptional position. The undue classification was not
germane to the purpose of the law. Instead, it contradicted the law and well- conferred in the manner that is being assailed in this case.72 If not addressed
established guidelines, rules and regulations meant to carry the law into here and now, there is great probability that the central question involved in
effect. While petitioner Abad cannot claim entitlement to the Order of this case will haunt us again in the future. Every President may invoke
National Artists,61 he is entitled to be given an equal opportunity to vie for that absolute presidential prerogative and thrust upon us National Artists after his
honor. In view of the foregoing, there was a violation of petitioner Abads right or her own heart, in total disregard of the advise of the CCP and the NCCA
to equal protection, an interest that is substantial enough to confer him and the voice of the community of artists, resulting to repeated episodes of
standing in this case. indignation and uproar from the artists and the public.

As regards the other concerned artists and academics as well as the CAP, Furthermore, if not corrected, such an act would give rise to mischief and
their claim of deep concern for the preservation of the countrys rich cultural dangerous precedent whereby those in the corridors of power could avoid
and artistic heritage, while laudable, falls short of the injury in fact judicial intervention and review by merely speedily and stealthily completing
requirement of standing. Their assertion constitutes a generalized grievance the commission of an illegality.73
shared in a substantially equal measure by all or a large class of citizens. 62
Nor can they take refuge in their status as taxpayers as the case does not In any event, the present petition is also for certiorari and there is no
involve any illegal appropriation or taxation. A taxpayers suit is proper only procedural bar for the Court to pass upon the question of whether the
when there is an exercise of the spending or taxing power of the Congress. 63 proclamations of respondents Guidote-Alvarez, Caparas, Maosa and
Moreno as National Artists were attended by grave abuse of presidential
Nonetheless, as a reading of the petition shows that it has advanced an discretion.
issue which deserves the attention of this Court in view of its seriousness,
novelty and weight as precedent, it behooves the Court to relax the rules on Limits of the Presidents Discretion
standing and to resolve the issue presented before it.64 Moreover, this issue
is of paramount interest,65 which further justifies a liberal stance on standing.
The respective powers of the CCP Board of Trustees and of the NCCA
Board of Commissioners with respect to the conferment of the Order of
Propriety of the Remedies National Artists are clear. They jointly administer the said award and, upon
their recommendation or advice, the President confers the Order of National
The present action is a petition for prohibition, certiorari, injunction, Artists.
restraining order and all other legal, just and equitable reliefs.
To "recommend" and to "advise" are synonymous. To "recommend" is "to
It has been held that the remedies of prohibition and injunction are preventive advise or counsel."74 To "advise" is "to give an opinion or counsel, or
and, as such, cannot be availed of to restrain an act that is already fait recommend a plan or course of action; also to give notice. To encourage,
accompli.66 Where the act sought to be prohibited or enjoined has already inform or acquaint."75 "Advise" imports that it is discretionary or optional with
been accomplished or consummated, prohibition or injunction becomes the person addressed whether he will act on such advice or not.76 This has
moot.67 been clearly explained in Cojuangco, Jr. v. Atty. Palma77:

Nevertheless, even if the principal issue is already moot, this Court may still The "power to recommend" includes the power to give "advice, exhortation or
resolve its merits for the future guidance of both bench and bar. Courts will indorsement, which is essentially persuasive in character, not binding upon
decide a question otherwise moot and academic if it is "capable of repetition, the party to whom it is made." (Emphasis supplied.)
yet evading review."68
Thus, in the matter of the conferment of the Order of National Artists, the
It is an opportune time for the Court to assert its role as republican President may or may not adopt the recommendation or advice of the NCCA
schoolmaster,69 a teacher in a vital national seminar.70 There are times when and the CCP Boards. In other words, the advice of the NCCA and the CCP is
the controversy is of such character that, to prevent its recurrence and to subject to the Presidents discretion.
assure respect for constitutional limitations, this Court must pass on the
merits of a case.71 This is one such case. More than being a teaching Nevertheless, the Presidents discretion on the matter is not totally
moment, this is not the first time that the Order of National Artists was unfettered, nor the role of the NCCA and the CCP Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams wherever it The authority of the CCP Board of Trustees as National Artists Awards
pleases but is reined in to keep it from straying. In its classic formulation, Committee was reiterated in Presidential Decree No. 208 dated June 7,
"discretion is not unconfined and vagrant" but "canalized within banks that 1973.
keep it from overflowing."78
The function of the CCP Board of Trustees as National Artists Awards
The Presidents power must be exercised in accordance with existing laws. Committee has been recognized under Republic Act No. 7356:
Section 17, Article VII of the Constitution prescribes faithful execution of the
laws by the President: Sec. 18. The National Cultural Agencies. The [NCCA] shall coordinate with
the national cultural agencies including but not limited to the Cultural Center
Sec. 17. The President shall have control of all the executive departments, of the Philippines, the Institute of Philippine Languages, the National
bureaus and offices. He shall ensure that the laws be faithfully executed. Historical Institute, the National Library, the National Museum, the Records
(Emphasis supplied.) Management and Archives Office. However, they shall continue operating
under their respective charters or as provided by law where provisions
The Presidents discretion in the conferment of the Order of National Artists therein are not inconsistent with the provisions of this Act. They shall serve
should be exercised in accordance with the duty to faithfully execute the as the national repository and/or showcase, as the case may be, of the best
relevant laws. The faithful execution clause is best construed as an obligation of Philippine culture and arts. For this purpose, these agencies shall submit
imposed on the President, not a separate grant of power.79 It simply periodic reports, including recommendations to the [NCCA]. (Emphasis
underscores the rule of law and, corollarily, the cardinal principle that the supplied.)
President is not above the laws but is obliged to obey and execute them. 80
This is precisely why the law provides that "administrative or executive acts, On the other hand, the NCCA has been given the following mandate in
orders and regulations shall be valid only when they are not contrary to the connection with the conferment of cultural or arts awards:
laws or the Constitution."81
Sec. 12. Mandate. The Commission is hereby mandated to formulate and
In this connection, the powers granted to the NCCA and the CCP Boards in implement policies and plans in accordance with the principles stated in Title
connection with the conferment of the Order of National Artists by executive 1 of this Act.
issuances were institutionalized by two laws, namely, Presidential Decree
No. 208 dated June 7, 1973 and Republic Act No. 7356. In particular, (a) To encourage the continuing and balanced development of a
Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as pluralistic culture by the people themselves, it shall:
the National Artists Awards Committee and tasked it to "administer the
conferment of the category of National Artist" upon deserving Filipino artists
xxxx
with the mandate to "draft the rules to guide its deliberations in the choice of
National Artists":
(4) extend recognition of artistic achievement through awards, grants
and services to artists and cultural groups which contribute
Proclamation No. 1001 dated April 27, 1972, creating the Award and
significantly to the Filipinos cultural legacy;
Decoration of National Artist, is hereby amended by creating a National
Artists Awards Committee, hereinafter to administer the conferment of the
category of National Artist upon those deserving thereof. The Committee, xxxx
which shall be composed of members of the Board of Trustees of the
Cultural Center of the Philippines, shall organize itself immediately and shall Sec. 13. Powers and Functions. To carry out its mandate, the
draft the rules to guide its deliberations in the choice of National Artists, to Commission shall exercise the following powers and functions:
the end that those who have created a body of work in the arts and in letters
capable of withstanding the test of time will be so recognized. (Emphases xxxx
supplied.)
(j) advise the President on matters pertaining to culture and the arts,
including the creation of a special decoration or award, for persons
who have significantly contributed to the development and promotion The Committee on Honors serves as a National Awards Committee. It is
of Philippine culture and arts; composed of the following:

(k) promulgate rules, regulations and undertake any and all The Executive Secretary, Chairman
measures as may be necessary to implement this Act. (Emphases
supplied.) The Secretary of Foreign Affairs, Vice-Chairman

By virtue of their respective statutory mandates in connection with the Head, Presidential Management Staff, member
conferment of the National Artist Award, the NCCA and the CCP decided to
work together and jointly administer the National Artist Award. They reviewed
Presidential Assistant for Historical Affairs, member
the guidelines for the nomination, selection and administration of the National
Artist Award, created a National Artist Award Secretariat, centralized all
financial resources and management for the administration of the National Chief of Presidential Protocol, member
Artist Award, and added another layer to the selection process so that more
members of the arts and culture sector of the Philippines may be involved Chief of Protocol, DFA, member
and participate in the selection of National Artists.
All nominations from the various awards committees must be submitted to
We have held that an administrative regulation adopted pursuant to law has the Committee on Honors via the Chancellery of Philippine Orders and State
the force and effect of law.82 Thus, the rules, guidelines and policies Decorations. The Chancellery shall process nominations for the
regarding the Order of National Artists jointly issued by the CCP Board of consideration of the Committee on Honors. The Committee on Honors shall
Trustees and the NCCA pursuant to their respective statutory mandates have screen and recommend these nominations to the President.
the force and effect of law. Until set aside, they are binding upon executive
and administrative agencies,83 including the President himself/herself as The Committee on Honors shall, as a general rule, serve as a screening
chief executor of laws. In this connection, Section 2.5(A) of the Implementing committee to ensure that nominations received from the various awards
Rules and Regulations84 of Executive Order No. 236, s. 2003 provides: committees meet two tests: that there has not been an abuse of discretion in
making the nomination, and that the nominee is in good standing. Should a
2.5: General Guidelines for Awards Committees nomination meet these criteria, a recommendation to the President for
conferment shall be made.
A. National Orders of Cultural and Scientific Merit
The President of the Philippines takes the recommendations of the
The existing modalities of the NCCA for selecting recipients for the Order of Committee on Honors in the highest consideration when making the final
National Artists, and the Gawad sa Manlilikha ng Bayan, and of the NAST for decision on the conferment of awards. (Emphasis supplied.)
selecting recipients of the Order of National Scientists, shall remain in force.
(Emphases supplied.) Pursuant to the above provision of the implementing rules of Executive Order
No. 236, s. 2003, the authority of the Committee on Honors is limited to
Section 2.4(A) of the same implementing rules further states: determining whether the nominations submitted by a particular awards
committee, in this case, the joint NCCA and CCP Boards, have been tainted
by abuse of discretion, and whether the nominees are in good standing.
2.4: Awards Committees
Should the nominations meet these two criteria, the Committee on Honors
shall make a recommendation to the President for conferment of the Order of
There shall be two types of awards committees: the Committee on Honors National Artists.
and the various awards committees in the various units of the government
service.
In view of the various stages of deliberation in the selection process and as a
consequence of his/her duty to faithfully enforce the relevant laws, the
A. The Committee on Honors discretion of the President in the matter of the Order of National Artists is
confined to the names submitted to him/her by the NCCA and the CCP There is grave abuse of discretion when an act is (1) done contrary to the
Boards. This means that the President could not have considered Constitution, the law or jurisprudence or (2) executed whimsically,
conferment of the Order of National Artists on any person not considered and capriciously or arbitrarily, out of malice, ill will or personal bias.86
recommended by the NCCA and the CCP Boards. That is the proper import
of the provision of Executive Order No. 435, s. 2005, that the NCCA and the There was a violation of the equal protection clause of the Constitution87
CCP "shall advise the President on the conferment of the Order of National when the former President gave preferential treatment to respondents
Artists." Applying this to the instant case, the former President could not have Guidote-Alvarez, Caparas, Maosa and Moreno.1wphi1 The former
properly considered respondents Guidote-Alvarez, Caparas, Maosa and Presidents constitutional duty to faithfully execute the laws and observe the
Moreno, as their names were not recommended by the NCCA and the CCP rules, guidelines and policies of the NCCA and the CCP as to the selection of
Boards. Otherwise, not only will the stringent selection and meticulous the nominees for conferment of the Order of National Artists proscribed her
screening process be rendered futile, the respective mandates of the NCCA from having a free and uninhibited hand in the conferment of the said award.
and the CCP Board of Trustees under relevant laws to administer the The manifest disregard of the rules, guidelines and processes of the NCCA
conferment of Order of National Artists, draft the rules and regulations to and the CCP was an arbitrary act that unduly favored respondents Guidote-
guide its deliberations, formulate and implement policies and plans, and Alvarez, Caparas, Maosa and Moreno. The conferment of the Order of
undertake any and all necessary measures in that regard will also become National Artists on said respondents was therefore made with grave abuse of
meaningless. discretion and should be set aside.

Furthermore, with respect to respondent Guidote-Alvarez who was the While the Court invalidates today the proclamation of respondents Guidote-
Executive Director of the NCCA at that time, the Guidelines expressly Alvarez, Caparas, Maosa and Moreno as National Artists, such action
provides: should not be taken as a pronouncement on whether they are worthy to be
conferred that honor. Only the President, upon the advise of the NCCA and
6.5 NCCA and CCP Board members and consultants and NCCA and CCP the CCP Boards, may determine that. The Court simply declares that, as the
officers and staff are automatically disqualified from being nominated.85 former President committed grave abuse of discretion in issuing
Proclamation Nos. 1826 to 1829 dated July 6, 2009, the said proclamations
Respondent Guidote-Alvarez could not have even been nominated, hence, are invalid. However, nothing in this Decision should be read as a
she was not qualified to be considered and conferred the Order of National disqualification on the part of respondents Guidote-Alvarez, Caparas,
Artists at that time. The Presidents discretion on the matter does not extend Maosa and Moreno to be considered for the honor of National Artist in the
to removing a legal impediment or overriding a legal restriction. future, subject to compliance with the laws, rules and regulations governing
said award.
From the foregoing, the advice or recommendation of the NCCA and the
CCP Boards as to the conferment of the Order of National Artists on Conde, WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos.
Dr. Santos, Francisco and Alcuaz was not binding on the former President 1826 to 1829 dated July 6, 2009 proclaiming respondents Cecile Guidote-
but only discretionary or optional for her whether or not to act on such advice Alvarez, Carlo Magno Jose Caparas, Francisco Maosa, and Jose Moreno,
or recommendation. Also, by virtue of the power of control, the President had respectively, as National Artists are declared INVALID and
the authority to alter or modify or nullify or set aside such recommendation or
advice. It was well within the Presidents power and discretion to proclaim all, SET ASIDE for having been issued with grave abuse of discretion.
or some or even none of the recommendees of the CCP and the NCCA
Boards, without having to justify his or her action. Thus, the exclusion of SO ORDERED.
Santos did not constitute grave abuse of discretion on the part of the former
President.

The conferment of the Order of National Artists on respondents Guidote-


Alvarez, Caparas, Maosa and Moreno was an entirely different matter.
G.R. No. 162272 April 7, 2009 entity shall be allowed to own more than five percent (5%) of the stock
offerings.4
SANTIAGO C. DIVINAGRACIA, Petitioner,
vs. It further appears that following the enactment of these franchise laws, the
CONSOLIDATED BROADCASTING SYSTEM, INC. and PEOPLE'S NTC issued four (4) Provisional Authorities to PBS and six (6) Provisional
BROADCASTING SERVICE, INC., Respondents. Authorities to CBS, allowing them to install, operate and maintain various AM
and FM broadcast stations in various locations throughout the nation.5 These
DECISION Provisional Authorities were issued between 1993 to 1998, or after the
enactment of R.A. No. 7477 and R.A. No. 7582.
TINGA, J.:
Petitioner Santiago C. Divinagracia6 filed two complaints both dated 1 March
Does the National Telecommunications Commission (NTC) have jurisdiction 1999 with the NTC, respectively lodged against PBS7 and CBS.8 He alleged
over complaints seeking the cancellation of certificates of public convenience that he was "the actual and beneficial owner of Twelve percent (12%) of the
shares of stock" of PBS and CBS separately,9 and that despite the provisions
(CPCs) and other licenses it had issued to the holders of duly-issued
in R.A. No. 7477 and R.A. No. 7582 mandating the public offering of at least
legislative franchises on the ground that the franchisees had violated the
30% of the common stocks of PBS and CBS, both entities had failed to make
terms of their franchises? The Court, in resolving that question, takes the
such offering. Thus, Divinagracia commonly argued in his complaints that the
opportunity to elaborate on the dynamic behind the regulation of broadcast
media in the Philippines, particularly the interrelationship between the twin failure on the part of PBS and CBS "to comply with the mandate of their
franchise and licensing requirements. legislative franchise is a misuse of the franchise conferred upon it by law and
it continues to exercise its franchise in contravention of the law to the
detriment of the general public and of complainant who are unable to enjoy
I. the benefits being offered by a publicly listed company."10 He thus prayed for
the cancellation of all the Provisional Authorities or CPCs of PBS and CBS
Respondents Consolidated Broadcasting System, Inc. (CBS) and Peoples on account of the alleged violation of the conditions set therein, as well as in
Broadcasting Service, Inc. (PBS) were incorporated in 1961 and 1965, its legislative franchises.11
respectively. Both are involved in the operation of radio broadcasting
services in the Philippines, they being the grantees of legislative franchises On 1 August 2000, the NTC issued a consolidated decision dismissing both
by virtue of two laws, Republic Act (R.A.) No. 7477 and R.A. No. 7582. R.A. complaints.12 While the NTC posited that it had full jurisdiction to revoke or
No. 7477, enacted on 5 May 1992, granted PBS a legislative franchise to cancel a Provisional Authority or CPC for violations or infractions of the terms
construct, install, maintain and operate radio and television stations within and conditions embodied therein,13 it held that the complaints actually
the Philippines for a period of 25 years. R.A. No. 7582, enacted on 27 May constituted collateral attacks on the legislative franchises of PBS and CBS
1992, extended CBSs previous legislative franchise1 to operate radio since the sole issue for determination was whether the franchisees had
stations for another 25 years. The CBS and PBS radio networks are two of violated the mandate to democratize ownership in their respective legislative
the three networks that comprise the well-known "Bombo Radyo franchises. The NTC ruled that it was not competent to render a ruling on
Philippines."2 that issue, the same being more properly the subject of an action for quo
warranto to be commenced by the Solicitor General in the name of the
Section 9 of R.A. No. 7477 and Section 3 of R.A. No. 7582 contain a Republic of the Philippines, pursuant to Rule 66 of the Rules of Court.14
common provision predicated on the "constitutional mandate to democratize
ownership of public utilities."3 The common provision states: After the NTC had denied Divinagracias motion for reconsideration,15 he filed
a petition for review under Rule 43 of the Rules of Court with the Court of
SEC. 9. Democratization of ownership. In compliance with the Appeals.16 On 18 February 2004, the Court of Appeals rendered a decision17
constitutional mandate to democratize ownership of public utilities, the herein upholding the NTC. The appellate court agreed with the earlier conclusion
grantee shall make public offering through the stock exchanges of at least that the complaints were indeed a collateral attack on the legislative
thirty percent (30%) of its common stocks within a period of three (3) years franchises of CBS and PBS and that a quo warranto action was the proper
from the date of effectivity of this Act: Provided, That no single person or mode to thresh out the issues raised in the complaints.
Hence this petition, which submits as the principal issue, whether the NTC, Noticeably, our Radio Control Act was enacted a few years after the United
with its retinue of regulatory powers, is powerless to cancel Provisional States Congress had passed the Radio Act of 1927. American broadcasters
Authorities and Certificates of Public Convenience it issued to legislative themselves had asked their Congress to step in and regulate the radio
franchise-holders. That central issue devolves into several narrower industry, which was then in its infancy. The absence of government
arguments, some of which hinge on the authority of the NTC to cancel the regulation in that market had led to the emergence of hundreds of radio
very Provisional Authorities and CPCs which it is empowered to issue, as broadcasting stations, each using frequencies of their choice and changing
distinguished from the legislative franchise itself, the cancellation of which frequencies at will, leading to literal chaos on the airwaves. It was the Radio
Divinagracia points out was not the relief he had sought from the NTC. Act of 1927 which introduced a licensing requirement for American broadcast
Questions are raised as to whether the complaints did actually constitute a stations, to be overseen eventually by the Federal Communications
collateral attack on the legislative franchises. Commission (FCC).23

Yet this case ultimately rests to a large degree on fundamentals. This pre-regulation history of radio broadcast stations illustrates the
Divinagracias case rotates on the singular thesis that the NTC has the power continuing necessity of a government role in overseeing the broadcast media
to cancel Provisional Authorities and CPCs, or in effect, the power to cancel industry, as opposed to other industries such as print media and the
the licenses that allow broadcast stations to operate. The NTC, in its assailed Internet.24 Without regulation, the result would be a free-for-all market with
Decision, expressly admits that it has such power even as it refrained from rival broadcasters able with impunity to sabotage the use by others of the
exercising the same.18 The Court has yet to engage in a deep inquiry into the airwaves.25 Moreover, the airwaves themselves the very medium utilized by
question of whether the NTC has the power to cancel the operating licenses broadcastare by their very nature not susceptible to appropriation, much
of entities to whom Congress has issued franchises to operate broadcast less be the object of any claim of private or exclusive ownership. No private
stations, especially on account of an alleged violation of the terms of their individual or enterprise has the physical means, acting alone to actualize
franchises. This is the opportune time to examine the issue. exclusive ownership and use of a particular frequency. That end, desirable
as it is among broadcasters, can only be accomplished if the industry itself is
II. subjected to a regime of government regulation whereby broadcasters
receive entitlement to exclusive use of their respective or particular
To fully understand the scope and dimensions of the regulatory realm of the frequencies, with the State correspondingly able by force of law to confine all
broadcasters to the use of the frequencies assigned to them.
NTC, it is essential to review the legal background of the regulation process.
As operative fact, any person or enterprise which wishes to operate a
broadcast radio or television station in the Philippines has to secure a Still, the dominant jurisprudential rationale for state regulation of broadcast
legislative franchise in the form of a law passed by Congress, and thereafter media is more sophisticated than a mere recognition of a need for the orderly
a license to operate from the NTC. administration of the airwaves. After all, a united broadcast industry can
theoretically achieve that goal through determined self-regulation. The key
basis for regulation is rooted in empiricism "that broadcast frequencies are
The franchise requirement traces its genesis to Act No. 3846, otherwise
a scarce resource whose use could be regulated and rationalized only by the
known as the Radio Control Act, enacted in 1931.19 Section 1 thereof
Government." This concept was first introduced in jurisprudence in the U.S.
provided that "[n]o person, firm, company, association or corporation shall
case of Red Lion v. Federal Communications Commission.26
construct, install, establish, or operate x x x a radio broadcasting station,
without having first obtained a franchise therefor from the National Assembly
x x x"20 Section 2 of the law prohibited the construction or installation of any Red Lion enunciated the most comprehensive statement of the necessity of
station without a permit granted by the Secretary of Public Works and government oversight over broadcast media. The U.S. Supreme Court
Communication, and the operation of such station without a license issued by observed that within years from the introduction of radio broadcasting in the
the same Department Secretary.21 The law likewise empowered the United States, "it became apparent that broadcast frequencies constituted a
Secretary of Public Works and Communication "to regulate the scarce resource whose use could be regulated and rationalized only by the
establishment, use, and operation of all radio stations and of all forms of Government without government control, the medium would be of little use
radio communications and transmissions within the Philippine Islands and to because of the cacophony of competing voices, none of which could be
issue such rules and regulations as may be necessary."22 clearly and predictably heard." The difficulties posed by spectrum scarcity
was concretized by the U.S. High Court in this manner:
Scarcity is not entirely a thing of the past. Advances in technology, such as frequency with others and to conduct himself as a proxy or fiduciary with
microwave transmission, have led to more efficient utilization of the obligations to present those views and voices which are representative of his
frequency spectrum, but uses for that spectrum have also grown apace. community and which would otherwise, by necessity, be barred from the
Portions of the spectrum must be reserved for vital uses unconnected with airwaves.28
human communication, such as radio-navigational aids used by aircraft and
vessels. Conflicts have even emerged between such vital functions as xxxx
defense preparedness and experimentation in methods of averting midair
collisions through radio warning devices. "Land mobile services" such as Rather than confer frequency monopolies on a relatively small number of
police, ambulance, fire department, public utility, and other communications licensees, in a Nation of 200,000,000, the Government could surely have
systems have been occupying an increasingly crowded portion of the
decreed that each frequency should be shared among all or some of those
frequency spectrum and there are, apart from licensed amateur radio
who wish to use it, each being assigned a portion of the broadcast day or the
operators' equipment, 5,000,000 transmitters operated on the "citizens' band"
broadcast week. The ruling and regulations at issue here do not go quite so
which is also increasingly congested. Among the various uses for radio
far. They assert that under specified circumstances, a licensee must offer to
frequency space, including marine, aviation, amateur, military, and common make available a reasonable amount of broadcast time to those who have a
carrier users, there are easily enough claimants to permit use of the whole view different from that which has already been expressed on his station.
with an even smaller allocation to broadcast radio and television uses than
The expression of a political endorsement, or of a personal attack while
now exists.(citations omitted)27
dealing with a controversial public issue, simply triggers this time sharing. As
we have said, the First Amendment confers no right on licensees to prevent
After interrelating the premise of scarcity of resources with the First others from broadcasting on "their" frequencies and no right to an
Amendment rights of broadcasters, Red Lion concluded that government unconditional monopoly of a scarce resource which the Government has
regulation of broadcast media was a necessity: denied others the right to use.

Where there are substantially more individuals who want to broadcast than In terms of constitutional principle, and as enforced sharing of a scarce
there are frequencies to allocate, it is idle to posit an unabridgeable First resource, the personal attack and political editorial rules are indistinguishable
Amendment right to broadcast comparable to the right of every individual to from the equal-time provision of 315, a specific enactment of Congress
speak, write, or publish. If 100 persons want broadcast [395 U.S. 367, 389] requiring stations to set aside reply time under specified circumstances and
licenses but there are only 10 frequencies to allocate, all of them may have to which the fairness doctrine and these constituent regulations are important
the same "right" to a license; but if there is to be any effective communication complements. That provision, which has been part of the law since 1927,
by radio, only a few can be licensed and the rest must be barred from the Radio Act of 1927, 18, 44 Stat. 1170, has been held valid by this Court as
airwaves. It would be strange if the First Amendment, aimed at protecting an obligation of the licensee relieving him of any power in any way to prevent
and furthering communications, prevented the Government from making or censor the broadcast, and thus insulating him from liability for defamation.
radio communication possible by requiring licenses to broadcast and by The constitutionality of the statute under the First Amendment was
limiting the number of licenses so as not to overcrowd the spectrum. unquestioned.(citations omitted)29

This has been the consistent view of the Court. Congress unquestionably As made clear in Red Lion, the scarcity of radio frequencies made it
has the power to grant and deny licenses and to eliminate existing stations. necessary for the government to step in and allocate frequencies to
No one has a First Amendment right to a license or to monopolize a radio competing broadcasters. In undertaking that function, the government is
frequency; to deny a station license because "the public interest" requires it impelled to adjudge which of the competing applicants are worthy of
"is not a denial of free speech." frequency allocation. It is through that role that it becomes legally viable for
the government to impose its own values and goals through a regulatory
By the same token, as far as the First Amendment is concerned those who regime that extends beyond the assignation of frequencies, notwithstanding
are licensed stand no better than those to whom licenses are refused. A the free expression guarantees enjoyed by broadcasters. As the government
license permits broadcasting, but the licensee has no constitutional right to is put in a position to determine who should be worthy to be accorded the
be the one who holds the license or to monopolize a radio frequency to the privilege to broadcast from a finite and limited spectrum, it may impose
exclusion of his fellow citizens. There is nothing in the First Amendment regulations to see to it that broadcasters promote the public good deemed
which prevents the Government from requiring a licensee to share his
important by the State, and to withdraw that privilege from those who fall Reference to the scarcity doctrine is necessary to gain a full understanding of
short of the standards set in favor of other worthy applicants. the paradigm that governs the state regulation of broadcast media. That
paradigm, as it exists in the United States, is contextually similar to our own,
Such conditions are peculiar to broadcast media because of the scarcity of except in one very crucial regard the dual franchise/license requirements
the airwaves. Indeed, any attempt to impose such a regulatory regime on a we impose.
medium that is not belabored under similar physical conditions, such as print
media, will be clearly antithetical to democratic values and the free III.
expression clause. This Court, which has adopted the "scarcity of resources"
doctrine in cases such as Telecom. & Broadcast Attys. of the Phils., Inc. v. Recall that the Radio Control Act specifically required the obtention of a
COMELEC,30 emphasized the distinction citing Red Lion: legislative franchise for the operation of a radio station in the Philippines.
When the Public Service Act was enacted in 1936, the Public Service
Petitioners complain that B.P. Blg. 881, 92 singles out radio and television Commission (PSC) was vested with jurisdiction over "public services,"
stations to provide free air time. They contend that newspapers and including over "wire or wireless broadcasting stations."33 However, among
magazines are not similarly required as, in fact, in Philippine Press Institute those specifically exempted from the regulatory reach of the PSC were "radio
v. COMELEC we upheld their right to the payment of just compensation for companies, except with respect to the fixing of rates."34 Thus, following the
the print space they may provide under 90. Radio Control Act, the administrative regulation of "radio companies"
remained with the Secretary of Public Works and Communications. It
The argument will not bear analysis. It rests on the fallacy that broadcast appears that despite the advent of commercial television in the 1950s, no
media are entitled to the same treatment under the free speech guarantee of corresponding amendment to either the Radio Control Act or the Public
the Constitution as the print media. There are important differences in the Service Act was passed to reflect that new technology then.
characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the Shortly after the 1972 declaration of martial law, President Marcos issued
broadcast spectrum, the government must, of necessity, allocate broadcast Presidential Decree (P.D.) No. 1, which allocated to the Board of
frequencies to those wishing to use them. There is no similar justification for Communications the authority to issue CPCs for the operation of radio and
government allocation and regulation of the print media. television broadcasting systems and to grant permits for the use of radio
frequencies for such broadcasting systems. In 1974, President Marcos
In the allocation of limited resources, relevant conditions may validly be promulgated Presidential Decree No. 576-A, entitled "Regulating the
imposed on the grantees or licensees. The reason for this is that, as already Ownership and Operation of Radio and Television Stations and for other
noted, the government spends public funds for the allocation and regulation Purposes." Section 6 of that law reads:
of the broadcast industry, which it does not do in the case of the print media.
To require the radio and television broadcast industry to provide free air time Section 6. All franchises, grants, licenses, permits, certificates or other forms
for the COMELEC Time is a fair exchange for what the industry gets.31 of authority to operate radio or television broadcasting systems shall
terminate on December 31, 1981. Thereafter, irrespective of any franchise,
Other rationales may have emerged as well validating state regulation of grants, license, permit, certificate or other forms of authority to operate
broadcast media,32 but the reality of scarce airwaves remains the primary, granted by any office, agency or person, no radio or television station shall
indisputable and indispensable justification for the government regulatory be authorized to operated without the authority of the Board of
role. The integration of the scarcity doctrine into the jurisprudence on Communications and the Secretary of Public Works and Communications or
broadcast media illustrates how the libertarian ideal of the free expression their successors who have the right and authority to assign to qualified
clause may be tempered and balanced by actualities in the real world while parties frequencies, channels or other means of identifying broadcasting
preserving the core essence of the constitutional guarantee. Indeed, without systems; Provided, however, that any conflict over, or disagreement with a
government regulation of the broadcast spectrum, the ability of broadcasters decision of the aforementioned authorities may be appealed finally to the
to clearly express their views would be inhibited by the anarchy of Office of the President within fifteen days from the date the decision is
competition. Since the airwaves themselves are not susceptible to physical received by the party in interest.
appropriation and private ownership, it is but indispensable that the
government step in as the guardian of the spectrum.
A few years later, President Marcos promulgated Executive Order (E.O.) No. h. Supervise and inspect the operation of radio stations and
546, establishing among others the National Telecommunications telecommunications facilities;
Commission. Section 15 thereof enumerates the various functions of the
NTC. i. Undertake the examination and licensing of radio operators;

Section 15. Functions of the Commission. The Commission shall exercise j. Undertake, whenever necessary, the registration of radio
the following functions: transmitters and transceivers; and

a. Issue Certificate of Public Convenience for the operation of k. Perform such other functions as may be prescribed by law.
communications utilities and services, radio communications
systems, wire or wireless telephone or telegraph systems, radio and
These enactments were considered when in 2003 the Court definitively
television broadcasting system and other similar public utilities; resolved that the operation of a radio or television station does require a
congressional franchise. In Associated Communications & Wireless Services
b. Establish, prescribe and regulate areas of operation of particular v. NTC,35 the Court took note of the confusion then within the broadcast
operators of public service communications; and determine and industry as to whether the franchise requirement first ordained in the 1931
prescribe charges or rates pertinent to the operation of such public Radio Control Act remained extant given the enactment of P.D. No. 576-A in
utility facilities and services except in cases where charges or rates 1974 and E.O. No. 546 in 1979. Notably, neither law had specifically required
are established by international bodies or associations of which the legislative franchises for the operation of broadcast stations. Nonetheless,
Philippines is a participating member or by bodies recognized by the the Court noted that Section 1 of P.D. No. 576-A had expressly referred to
Philippine Government as the proper arbiter of such charges or the franchise requirement in stating that "[n]o radio station or television
rates; channel may obtain a franchise unless it has sufficient capital on the basis of
equity for its operation for at least one year ."36 Section 6 of that law made
c. Grant permits for the use of radio frequencies for wireless a similar reference to the franchise requirement.37 From those references,
telephone and telegraph systems and radio communication systems the Court concluded that the franchise requirement under the Radio Control
including amateur radio stations and radio and television Act was not repealed by P.D. No. 576-A.38
broadcasting systems;
Turning to E.O. No. 546, the Court arrived at a similar conclusion, despite a
d. Sub-allocate series of frequencies of bands allocated by the Department of Justice Opinion stating that the 1979 enactment had
International Telecommunications Union to the specific services; dispensed with the congressional franchise requirement. The Court clarified
that the 1989 ruling in Albano v. Reyes, to the effect that "franchises issued
e. Establish and prescribe rules, regulations, standards, by Congress are not required before each and every public utility may
specifications in all cases related to the issued Certificate of Public operate" did not dispense with the franchise requirement insofar as
Convenience and administer and enforce the same; broadcast stations are concerned.

f. Coordinate and cooperate with government agencies and other Our ruling in Albano that a congressional franchise is not required before
entities concerned with any aspect involving communications with a "each and every public utility may operate" should be viewed in its proper
view to continuously improve the communications service in the light. Where there is a law such as P.D. No. 576-A which requires a franchise
country; for the operation of radio and television stations, that law must be followed
until subsequently repealed. As we have earlier shown, however, there is
nothing in the subsequent E.O. No. 546 which evinces an intent to dispense
g. Promulgate such rules and regulations, as public safety and
with the franchise requirement. In contradistinction with the case at bar, the
interest may require, to encourage a larger and more effective use of
law applicable in Albano, i.e., E.O. No. 30, did not require a franchise for the
communications, radio and television broadcasting facilities, and to
maintain effective competition among private entities in these Philippine Ports Authority to take over, manage and operate the Manila
activities whenever the Commission finds it reasonably feasible; International Port Complex and undertake the providing of cargo handling
and port related services thereat. Similarly, in Philippine Airlines, Inc. v. Civil
Aeronautics Board, et al., we ruled that a legislative franchise is not Act of 1931 and accommodated under the 1987 Constitution. At the same
necessary for the operation of domestic air transport because "there is time, the Court in Associated Communications referred to another form of
nothing in the law nor in the Constitution which indicates that a legislative "permission" required of broadcast stations, that is the CPC issued by the
franchise is an indispensable requirement for an entity to operate as a NTC. What is the source of such requirement?
domestic air transport operator." Thus, while it is correct to say that specified
agencies in the Executive Branch have the power to issue authorization for The Radio Control Act had also obliged radio broadcast stations to secure a
certain classes of public utilities, this does not mean that the authorization or permit from the Secretary of Commerce and Industry42 prior to the
CPC issued by the NTC dispenses with the requirement of a franchise as this construction or installation of any station.43 Said Department Secretary was
is clearly required under P.D. No. 576-A.39 also empowered to regulate "the establishment, use and operation of all
radio stations and of all forms of radio communications and
The Court further observed that Congress itself had accepted it as a given
that a legislative franchise is still required to operate a broadcasting station in transmission within the Philippines."44 Among the specific powers granted to
the Philippines. the Secretary over radio stations are the approval or disapproval of any
application for the construction, installation, establishment or operation of a
That the legislative intent is to continue requiring a franchise for the operation radio station45 and the approval or disapproval of any application for renewal
of radio and television broadcasting stations is clear from the franchises of station or operation license.46
granted by Congress after the effectivity of E.O. No. 546 in 1979 for the
operation of radio and television stations. Among these are: (1) R.A. No. As earlier noted, radio broadcasting companies were exempted from the
9131 dated April 24, 2001, entitled "An Act Granting the Iddes Broadcast jurisdiction of the defunct Public Service Commission except with respect to
Group, Inc., a Franchise to Construct, Install, Establish, Operate and their rates; thus, they did not fall within the same regulatory regime as other
Maintain Radio and Television Broadcasting Stations in the Philippines"; (2) public services, the regime which was characterized by the need for CPC or
R.A. No. 9148 dated July 31, 2001, entitled "An Act Granting the Hypersonic CPCN. However, following the Radio Control Act, it became clear that radio
Broadcasting Center, Inc., a Franchise to Construct, Install, Establish, broadcast companies need to obtain a similar license from the government in
Operate and Maintain Radio Broadcasting Stations in the Philippines;" and order to operate, at that time from the Department of Public Works and
(3) R.A. No. 7678 dated February 17, 1994, entitled "An Act Granting the Communications.
Digital Telecommunication Philippines, Incorporated, a Franchise to Install,
Operate and Maintain Telecommunications Systems Throughout the
Then, as earlier noted, in 1972, President Marcos through P.D. No. 1,
Philippines." All three franchises require the grantees to secure a
transferred to the Board of Communications the function of issuing CPCs for
CPCN/license/permit to construct and operate their stations/systems. the operation of radio and television broadcasting systems, as well as the
Likewise, the Tax Reform Act of 1997 provides in Section 119 for tax on granting of permits for the use of radio frequencies for such broadcasting
franchise of radio and/or television broadcasting companies x x x 40
systems. With the creation of the NTC, through E.O. No. 546 in 1979, that
agency was vested with the power to "[i]ssue certificate[s] of public
Associated Communications makes clear that presently broadcast stations convenience for the operation of radio and television broadcasting
are still required to obtain a legislative franchise, as they have been so since system[s]."47 That power remains extant and undisputed to date.
the passage of the Radio Control Act in 1931. By virtue of this requirement,
the broadcast industry falls within the ambit of Section 11, Article XII of the
This much thus is clear. Broadcast and television stations are required to
1987 Constitution, the one constitutional provision
obtain a legislative franchise, a requirement imposed by the Radio Control
Act and affirmed by our ruling in Associated Broadcasting. After securing
concerned with the grant of franchises in the Philippines. 41 The requirement their legislative franchises, stations are required to obtain CPCs from the
of a legislative franchise likewise differentiates the Philippine broadcast NTC before they can operate their radio or television broadcasting systems.
industry from that in America, where there is no need to secure a franchise Such requirement while traceable also to the Radio Control Act, currently
from the U.S. Congress. finds its basis in E.O. No. 546, the law establishing the NTC.

It is thus clear that the operators of broadcast stations in the Philippines must
secure a legislative franchise, a requirement imposed by the Radio Control
From these same legal premises, the next and most critical question is agency, then the action of such administrative agency cannot be sustained.
whether the NTC has the power to cancel the CPCs it has issued to The life and authority of an administrative agency emanates solely from an
legislative franchisees. Act of Congress, and its faculties confined within the parameters set by the
legislative branch of government.
IV.
We earlier replicated the various functions of the NTC, as established by
The complexities of our dual franchise/license regime for broadcast media E.O. No. 546. One can readily notice that even as the NTC is vested with the
should be understood within the context of separation of powers. The right of power to issue CPCs to broadcast stations, it is not expressly vested with the
a particular entity to broadcast over the airwaves is established by law i.e., power to cancel such CPCs, or otherwise empowered to prevent broadcast
the legislative franchise and determined by Congress, the branch of stations with duly issued franchises and CPCs from operating radio or
government tasked with the creation of rights and obligations. As with all television stations.1avvphi1
other laws passed by Congress, the function of the executive branch of
government, to which the NTC belongs, is the implementation of the law. In In contrast, when the Radio Control Act of 1931 maintained a similar
broad theory, the legal obligation of the NTC once Congress has established requirement for radio stations to obtain a license from a government official
a legislative franchise for a broadcast media station is to facilitate the (the Secretary of Commerce and Industry), it similarly empowered the
operation by the franchisee of its broadcast stations. However, since the government, through the Secretary of Public Works and Communications, to
public administration of the airwaves is a requisite for the operation of a suspend or revoke such license, as indicated in Section 3(m):
franchise and is moreover a highly technical function, Congress has
delegated to the NTC the task of administration over the broadcast spectrum, Section 3. The Secretary of Public Works and Communications is hereby
including the determination of available bandwidths and the allocation of empowered, to regulate the construction or manufacture, possession,
such available bandwidths among the various legislative franchisees. The control, sale and transfer of radio transmitters or transceivers (combination
licensing power of the NTC thus arises from the necessary delegation by transmitter-receiver) and the establishment, use, the operation of all radio
Congress of legislative power geared towards the orderly exercise by stations and of all form of radio communications and transmissions within the
franchisees of the rights granted them by Congress. Philippines. In addition to the above he shall have the following specific
powers and duties:
Congress may very well in its wisdom impose additional obligations on the
various franchisees and accordingly delegate to the NTC the power to (m) He may, at his direction bring criminal action against violators of the radio
ensure that the broadcast stations comply with their obligations under the laws or the regulations and confiscate the radio apparatus in case of illegal
law. Because broadcast media enjoys a lesser degree of free expression operation; or simply suspend or revoke the offenders station or operator
protection as compared to their counterparts in print, these legislative licenses or refuse to renew such licenses; or just reprimand and warn the
restrictions are generally permissible under the Constitution. Yet no offenders;48
enactment of Congress may contravene the Constitution and its Bill of
Rights; hence, whatever restrictions are imposed by Congress on broadcast
Section 3(m) begets the question did the NTC retain the power granted in
media franchisees remain susceptible to judicial review and analysis under 1931 to the Secretary of Public Works and Communications to "x x x
the jurisprudential framework for scrutiny of free expression cases involving suspend or revoke the offenders station or operator licenses or refuse to
the broadcast media.
renew such licenses"? We earlier adverted to the statutory history. The
enactment of the Public Service Act in 1936 did not deprive the Secretary of
The restrictions enacted by Congress on broadcast media franchisees have regulatory jurisdiction over radio stations, which included the power to
to pass the mettle of constitutionality. On the other hand, the restrictions impose fines. In fact, the Public Service Commission was precluded from
imposed by an administrative agency such as the NTC on broadcast media exercising such jurisdiction, except with respect to the fixing of rates.
franchisees will have to pass not only the test of constitutionality, but also the
test of authority and legitimacy, i.e., whether such restrictions have been
Then, in 1972, the regulatory authority over broadcast media was transferred
imposed in the exercise of duly delegated legislative powers from Congress.
to the Board of Communications by virtue of P. D. No. 1, which adopted,
If the restriction or sanction imposed by the administrative agency cannot
approved, and made as part of the law of the land the Integrated
trace its origin from legislative delegation, whether it is by virtue of a specific Reorganization Plan which was prepared by the Commission on
grant or from valid delegation of rule-making power to the administrative
Reorganization.49 Among the cabinet departments affected by the plan was petitioners premise, the Court will be unable to rely on an unequivocally
the Department of Public Works and Communications, which was now current and extant provision of law that justifies the NTCs power to cancel
renamed the Department of Public Works, Transportation and CPCs. Petitioner suggests that since the NTC has the power to issue CPCs,
Communication.50 New regulatory boards under the administrative it necessarily has the power to revoke the same. One might also argue that
supervision of the Department were created, including the Board of through the general rule-making power of the NTC, we can discern a right of
Communications.51 the NTC to cancel CPCs.

The functions of the Board of Communications were enumerated in Part X, We must be mindful that the issue for resolution is not a run-of-the-mill matter
Chapter I, Article III, Sec. 5 of the Integrated Reorganization Plan.52 What is which would be settled with ease with the application of the principles of
noticeably missing from these enumerated functions of the Board of statutory construction. It is at this juncture that the constitutional implications
Communications is the power to revoke or cancel CPCs, even as the Board of this case must ascend to preeminence.
was vested the power to issue the same. That same pattern held true in
1976, when the Board of Communications was abolished by E.O. No. 546. 53 A.
Said executive order, promulgated by then President Marcos in the exercise
of his legislative powers, created the NTC but likewise withheld from it the
It is beyond question that respondents, as with all other radio and television
authority to cancel licenses and CPCs, even as it was empowered to issue
broadcast stations, find shelter in the Bill of Rights, particularly Section 3,
CPCs. Given the very specific functions allocated by law to the NTC, it would
Article III of the Constitution. At the same time, as we have labored earlier to
be very difficult to recognize any intent to allocate to the Commission such
point out, broadcast media stands, by reason of the conditions of scarcity,
regulatory functions previously granted to the Secretary of Public Works and within a different tier of protection from print media, which unlike broadcast,
Communications, but not included in the exhaustive list of functions does not have any regulatory interaction with the government during its
enumerated in Section 15.
operation.

Certainly, petitioner fails to point to any provision of E.O. No. 546 authorizing
Still, the fact that state regulation of broadcast media is constitutionally
the NTC to cancel licenses. Neither does he cite any provision under P.D. justified does not mean that its practitioners are precluded from invoking
No. 1 or the Radio Control Act, even if Section 3(m) of the latter law provides
Section 3, Article III of the Constitution in their behalf. Far from it. Our
at least, the starting point of a fair argument. Instead, petitioner relies on the
democratic way of life is actualized by the existence of a free press, whether
power granted to the Public Service Commission to revoke CPCs or CPCNs
print media or broadcast media. As with print media, free expression through
under Section 16(m) of the Public Service Act.54 That argument has been
broadcast media is protected from prior restraint or subsequent punishment.
irrefragably refuted by Section 14 of the Public Service Act, and by The franchise and licensing requirements are mainly impositions of the laws
jurisprudence, most especially RCPI v. NTC.55 As earlier noted, at no time of physics which would stand to periodic reassessment as technology
did radio companies fall under the jurisdiction of the Public Service
advances. The science of today renders state regulation as a necessity, yet
Commission as they were expressly excluded from its mandate under
this should not encumber the courts from accommodating greater freedoms
Section 14. In addition, the Court ruled in RCPI that since radio companies,
to broadcast media when doing so would not interfere with the existing
including broadcast stations and telegraphic agencies, were never under the
legitimate state interests in regulating the industry.
jurisdiction of the Public Service Commission except as to rate-fixing, that
Commissions authority to impose fines did not carry over to the NTC even
while the other regulatory agencies that emanated from the Commission did In FCC v. League of Women Voters of California,57 the U.S. Supreme Court
retain the previous authority their predecessor had exercised.56 No provision reviewed a law prohibiting noncommercial broadcast stations that received
in the Public Service Act thus can be relied upon by the petitioner to claim funding from a public corporation from "engaging in editorializing." The U.S.
that the NTC has the authority to cancel CPCs or licenses. Supreme Court acknowledged the differentiated First Amendment standard
of review that applied to broadcast media. Still, it struck down the restriction,
holding that "[the] regulation impermissibly sweeps within its prohibition a
It is still evident that E.O. No. 546 provides no explicit basis to assert that the
wide range of speech by wholly private stations on topics that do not take a
NTC has the power to cancel the licenses or CPCs it has duly issued, even
directly partisan stand or that have nothing whatever to do with federal, state,
as the government office previously tasked with the regulation of radio
or local government."58 We are similarly able to maintain fidelity to the
stations, the Secretary of Public Works and Communications, previously
possessed such power by express mandate of law. In order to sustain
fundamental rights of broadcasters even while upholding the rationale behind B.
the regulatory regime governing them.
In analyzing the compelling government interest that may justify the
Should petitioners position that the NTC has the power to cancel CPCs or investiture of authority on the NTC advocated by petitioner, we cannot ignore
licenses it has issued to broadcast stations although they are in the first the interest of the State as expressed in the respective legislative franchises
place empowered by their respective franchise to exercise their rights to free of the petitioner, R.A. No. 7477 and R. A. Act No. 7582. Since legislative
expression and as members of a free press, be adopted broadcast media franchises are extended through statutes, they should receive recognition as
would be encumbered by another layer of state restrictions. As things stand, the ultimate expression of State policy. What the legislative franchises of
they are already required to secure a franchise from Congress and a CPC respondents express is that the Congress, after due debate and deliberation,
from the NTC in order to operate. Upon operation, they are obliged to comply declares it as State policy that respondents should have the right to operate
with the various regulatory issuances of the NTC, which has the power to broadcast stations. The President of the Philippines, by affixing his signature
impose fees and fines and other mandates it may deem fit to prescribe in the to the law, concurs in such State policy.
exercise of its rule-making power.
Allowing the NTC to countermand State policy by revoking respondents
The fact that broadcast media already labors under this concededly valid vested legal right to operate broadcast stations unduly gives to a mere
regulatory framework necessarily creates inhibitions on its practitioners as administrative agency veto power over the implementation of the law and the
they operate on a daily basis. Newspapers are able to print out their daily enforcement of especially vested legal rights. That concern would not arise if
editions without fear that a government agency such as the NTC will be able Congress had similarly empowered the NTC with the power to revoke a
to suspend their publication or fine them based on their content. Broadcast franchisees right to operate broadcast stations. But as earlier stated, there is
stations do already operate with that possibility in mind, and that no such expression in the law, and by presuming such right the Court will be
circumstance ineluctably restrains its content, notwithstanding the acting contrary to the stated State interest as expressed in respondents
constitutional right to free expression. However, the cancellation of a CPC or legislative franchises.
license to operate of a broadcast station, if we recognize that possibility, is
essentially a death sentence, the most drastic means to inhibit a broadcast If we examine the particular franchises of respondents, it is readily apparent
media practitioner from exercising the constitutional right to free speech, that Congress has especially invested the NTC with certain powers with
expression and of the press. respect to their broadcast operations. Both R.A. No. 747759 and R.A. No.
758260 require the grantee "to secure from the [NTC] the appropriate permits
This judicial philosophy aligns well with the preferred mode of scrutiny in the and licenses for its stations," barring the private respondents from "using any
analysis of cases with dimensions of the right to free expression. When frequency in the radio spectrum without having been authorized by the
confronted with laws dealing with freedom of the mind or restricting the [NTC]." At the same time, both laws provided that "[the NTC], however, shall
political process, of laws dealing with the regulation of speech, gender, or not unreasonably withhold or delay the grant of any such authority."
race as well as other fundamental rights as expansion from its earlier
applications to equal protection, the Court has deemed it appropriate to apply An important proviso is stipulated in the legislative franchises, particularly
"strict scrutiny" when assessing the laws involved or the legal arguments under Section 5 of R.A. No. 7477 and Section 3 of R.A. No. 7582, in relation
pursued that would diminish the efficacy of such constitutional right. The to Section 11 of R.A. No. 3902.
assumed authority of the NTC to cancel CPCs or licenses, if sustained, will
create a permanent atmosphere of a less free right to express on the part of
Section 5. Right of Government. A special right is hereby reserved to the
broadcast media. So that argument could be sustained, it will have to
President of the Philippines, in times of rebellion, public peril, calamity,
withstand the strict scrutiny from this Court.
emergency, disaster or disturbance of peace and order, to temporarily take
over and operate the stations of the grantee, temporarily suspend the
Strict scrutiny entails that the presumed law or policy must be justified by a operation of any stations in the interest of public safety, security and public
compelling state or government interest, that such law or policy must be welfare, or authorize the temporary use and operation thereof by any agency
narrowly tailored to achieve that goal or interest, and that the law or policy of the Government, upon due compensation to the grantee, for the use of
must be the least restrictive means for achieving that interest. It is through said stations during the period when they shall be so operated.
that lens that we examine petitioners premise that the NTC has the authority
to cancel licenses of broadcast franchisees.
The provision authorizes the President of the Philippines to exercise difficulty of envisioning the compelling State interest in granting the NTC
considerable infringements on the right of the franchisees to operate their such authority. But let us assume for arguments sake, that relieving the
enterprises and the right to free expression. Such authority finds corollary injury complained off by petitioner the failure of private respondents to open
constitutional justification as well under Section 17, Article XII, which allows up ownership through the initial public offering mandated by law is a
the State "in times of national emergency, when the public interest so compelling enough State interest to allow the NTC to extend consequences
requires x x x during the emergency and under reasonable terms prescribed by canceling the licenses or CPCs of the erring franchisee.
by it, temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest." We do not doubt that There is in fact a more appropriate, more narrowly-tailored and least
the President or the State can exercise such authority through the NTC, restrictive remedy that is afforded by the law. Such remedy is that adverted
which remains an agency within the executive branch of government, but to by the NTC and the Court of Appeals the resort to quo warranto
such can be exercised only under limited and rather drastic circumstances. proceedings under Rule 66 of the Rules of Court.
They still do not vest in the NTC the broad authority to cancel licenses and
permits.
Under Section 1 of Rule 66, "an action for the usurpation of a public office,
position or franchise may be brought in the name of the Republic of the
These provisions granting special rights to the President in times of Philippines against a person who usurps, intrudes into, or unlawfully holds or
emergency are incorporated in our understanding of the legislated state exercises public office, position or franchise."61 Even while the action is
policy with respect to the operation by private respondents of their legislative maintained in the name of the Republic62 , the Solicitor General or a public
franchises. There are restrictions to the operation of such franchises, and prosecutor is obliged to commence such action upon complaint, and upon
when these restrictions are indeed exercised there still may be cause for the good reason to believe that any case specified under Section 1 of Rule 66
courts to review whether said limitations are justified despite Section 3, can be established by proof.63
Article I of the Constitution. At the same time, the state policy as embodied in
these franchises is to restrict the governments ability to impair the freedom The special civil action of quo warranto is a prerogative writ by which the
to broadcast of the stations only upon the occurrence of national
Government can call upon any person to show by what warrant he holds a
emergencies or events that compromise the national security.
public office or exercises a public franchise.64 It is settled that "[t]he
determination of the right to the exercise of a franchise, or whether the right
It should be further noted that even the aforequoted provision does not to enjoy such privilege has been forfeited by non-user, is more properly the
authorize the President or the government to cancel the licenses of the subject of the prerogative writ of quo warranto, the right to assert which, as a
respondents. The temporary nature of the takeover or closure of the station rule, belongs to the State upon complaint or otherwise, the reason being
is emphasized in the provision. That fact further disengages the provision that the abuse of a franchise is a public wrong and not a private injury."65 A
from any sense that such delegated authority can be the source of a broad forfeiture of a franchise will have to be declared in a direct proceeding for the
ruling affirming the right of the NTC to cancel the licenses of franchisees. purpose brought by the State because a franchise is granted by law and its
unlawful exercise is primarily a concern of Government.66 Quo warranto is
With the legislated state policy strongly favoring the unimpeded operation of specifically available as a remedy if it is thought that a government
the franchisees stations, it becomes even more difficult to discern what corporation has offended against its corporate charter or misused its
compelling State interest may be fulfilled in ceding to the NTC the general franchise.67
power to cancel the franchisees CPCs or licenses absent explicit statutory
authorization. This absence of a compelling state interest strongly disfavors The Court of Appeals correctly noted that in PLDT v. NTC,68 the Court had
petitioners cause. cited quo warranto as the appropriate recourse with respect to an allegation
by petitioner therein that a rival telecommunications competitor had failed to
C. construct its radio system within the ten (10) years from approval of its
franchise, as mandated by its legislative franchise. 69 It is beyond dispute that
Now, we shall tackle jointly whether a law or policy allowing the NTC to quo warranto exists as an available and appropriate remedy against the
cancel CPCs or licenses is to be narrowly tailored to achieve that requisite wrong imputed on private respondents.
compelling State goal or interest, and whether such a law or policy is the
least restrictive means for achieving that interest. We addressed earlier the
Petitioners argue that since their prayer involves the cancellation of the narrowly-tailored relief that is responsive to the cause of petitioner not only
provisional authority and CPCs, and not the legislative franchise, then quo exists, but is in fact tailor-fitted to the constitutional framework of our
warranto fails as a remedy. The argument is artificial. The authority of the government and the adjudication of legal and constitutional rights. Given the
franchisee to engage in broadcast operations is derived in the legislative current status of the law, there is utterly no reason for this Court to subscribe
mandate. To cancel the provisional authority or the CPC is, in effect, to to the theory that the NTC has the presumed authority to cancel licenses and
cancel the franchise or otherwise prevent its exercise. By law, the NTC is CPCs issued to due holders of legislative franchise to engage in broadcast
incapacitated to frustrate such mandate by unduly withholding or canceling operations.
the provisional authority or the CPC for reasons other than the orderly
administration of the frequencies in the radio spectrum. V.

What should occur instead is the converse. If the courts conclude that private An entire subset of questions may arise following this decision, involving
respondents have violated the terms of their franchise and thus issue the issues or situations not presently before us. We wish to make clear that the
writs of quo warranto against them, then the NTC is obliged to cancel any only aspect of the regulatory jurisdiction of the NTC that we are ruling upon is
existing licenses and CPCs since these permits draw strength from the its presumed power to cancel provisional authorities, CPCs or CPCNs and
possession of a valid franchise. If the point has not already been made clear, other such licenses required of franchisees before they can engage in
then licenses issued by the NTC such as CPCs and provisional authorities broadcast operations. Moreover, our conclusion that the NTC has no such
are junior to the legislative franchise enacted by Congress. The licensing power is borne not simply from the statutory language of E.O. No. 546 or the
authority of the NTC is not on equal footing with the franchising authority of respective stipulations in private respondents franchises, but moreso, from
the State through Congress. The issuance of licenses by the NTC the application of the strict scrutiny standard which, despite its weight
implements the legislative franchises established by Congress, in the same towards free speech, still involves the analysis of the competing interests of
manner that the executive branch implements the laws of Congress rather the regulator and the regulated.
than creates its own laws. And similar to the inability of the executive branch
to prevent the implementation of laws by Congress, the NTC cannot, without
In resolving the present questions, it was of marked impact to the Court that
clear and proper delegation by Congress, prevent the exercise of a
the presumed power to cancel would lead to utterly fatal consequences to
legislative franchise by withholding or canceling the licenses of the the constitutional right to expression, as well as the legislated right of these
franchisee.
franchisees to broadcast. Other regulatory measures of less drastic impact
will have to be assessed on their own terms in the proper cases, and our
And the role of the courts, through quo warranto proceedings, neatly decision today should not be accepted or cited as a blanket shearing of the
complements the traditional separation of powers that come to bear in our NTCs regulatory jurisdiction. In addition, considering our own present
analysis. The courts are entrusted with the adjudication of the legal status of recognition of legislative authority to regulate broadcast media on terms more
persons, the final arbiter of their rights and obligations under law. The cumbersome than print media, it should not be discounted that Congress
question of whether a franchisee is in breach of the franchise specially may enact amendments to the organic law of the NTC that would alter the
enacted for it by Congress is one inherently suited to a court of law, and not legal milieu from which we adjudicated today.1avvphi1.zw+
for an administrative agency, much less one to which no such function has
been delegated by Congress. In the same way that availability of judicial Still, the Court sees all benefit and no detriment in striking this blow in favor
review over laws does not preclude Congress from undertaking its own of free expression and of the press. While the ability of the State to broadly
remedial measures by appropriately amending laws, the viability of quo
regulate broadcast media is ultimately dictated by physics, regulation with a
warranto in the instant cases does not preclude Congress from enforcing its
light touch evokes a democracy mature enough to withstand competing
own prerogative by abrogating the legislative franchises of respondents
viewpoints and tastes. Perhaps unwittingly, the position advocated by
should it be distressed enough by the franchisees violation of the franchises
petitioner curdles a most vital sector of the press broadcast media within
extended to them. the heavy hand of the State. The argument is not warranted by law, and it
betrays the constitutional expectations on this Court to assert lines not drawn
Evidently, the suggested theory of petitioner to address his plaints simply and connect the dots around throats that are free to speak.
overpowers the delicate balance of separation of powers, and unduly grants
superlative prerogatives to the NTC to frustrate the exercise of the
constitutional freedom speech, expression, and of the press. A more
WHEREFORE, the instant petition is DENIED. No pronouncement as to
costs.

SO ORDERED.
G.R. No.166923 November 26, 2014 Section 7. Clientele. The clients of OWWA are its memberOFWs.

PHILIPPINE MIGRANTS RIGHTS WATCH, INC., on its own behalf and on Article III
behalf of its memberoverseas Filipino workers, JESUS REYES and Organization and Management
RODOLFO MACOROL, Petitioners,
vs. xxxx
OVERSEAS WELFARE WORKERS ADMINISTRATION and its Board of
Trustees composed of HON. PA TRICIA A. STO. TOMAS, VIRGILIO R.
Section 5. Board Proceedings. The Board proceedings shall be guided by the
ANGELO, MANUEL G. IMSON, The Secretary of Foreign Affairs,
following rules:
represented by Undersecretary JOSE S. BRILLANTES, ROSALINDA
BALDOZ, The Secretary of Budget and Management, represented by
Assistant Secretary EDUARDO P. OPIDA, MINA C. FIGUEROA, xxxx
VICTORINO F. BALAIS, CAROLINE R. ROGGE, GREGORIO S. OCA,
CORAZON P. CARSOLA and VIRGINIA J. PASALO, Respondents. c.) Attendance of Proxies. The Board members may designate their
permanent alternate in writing subject to the acceptance of the Board. The
DECISION designated alternate shall have voting rights. His decision shall be deemed
the decision of his principal.
PERALTA, J.:
The Alternate cannot further delegate such representation. However, in the
event that the member and his permanent alternate are absent, any
Before the Court is a petition for review under Rule 45 of the Rules of Court
representative sent shall be on observer status.
seeking to reverse and set aside the Orders dated August 31, 20041 and
January 14, 20052 of the Regional Trial Court (RTC) of Pasay City, Branch
CXI (111), in Civil Case No. 04-0077 dismissing the same for lack of xxxx
jurisdiction.
h.) Records Management and Archiving of Board Documents. The Board
The antecedent facts are as follows: Secretary shall ensure a thorough recording of all proceedings during a
Board meeting. The minutes of the previous meeting shall be made available
for approval during the scheduled Board Meeting. The Minutes of the
On September 19, 2003, respondent Overseas Workers Welfare
Meeting shall basically contain the attendance, business arising from the
Administration (OWWA) issued Board Resolution No. 0383 entitled the
minutes, major agreements reached, corresponding resolutions, and other
OWWA Omnibus Policiesto provide guidelines on matters concerning
items noted or discussed, and instructions issued by the Board. All minutes,
OWWA membership and its coverage, collection of contributions, and tapes, and other documents pertaining to the business of the Board shall
availment of benefits. bekept and archived pursuant to standard records management systems and
procedures. The minutes, transcripts and tapes are classified confidential
On February 18, 2004, petitioners Philippine Migrants Rights Watch, Inc., on and are not for public circulation unless otherwise authorized by the
behalf of its member-overseas Filipino workers, together with Jesus P. Reyes Board/Administrator.
and Rodolfo B. Macorol, returned overseas Filipino workers, filed a
Complaint4 before the RTC of Pasay City seeking to annul the Omnibus Article IV
Policies, specifically Sections 4, 5, 6, 7, and 8 of Article II, Sections 5(C) (H)
MEMBERSHIP
of Article III, and Articles IV, V, VI, VII,VIII, the pertinent portions of which
provide:
Section 1. Membership. Membership in OWWA may be obtained in two
ways:
Article II
OWWA Mandate
(a) By enrollment upon processing of contract at the POEA; and
xxxx
(b) By voluntary registration of OFWs at job-sites overseas. Section 2. Benefits and Services for OWWA Members.For a US$25.00
membership contribution, an OWWA member shall be entitled to the
Section 2. Proof of Membership. All members shall be issued Official Receipt following benefits and services: x x x5
upon payment of contribution. They shall likewise be issued an OWWA E-
Card. According to petitioners, respondents acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the Omnibus Policies,
POEA and OWWA are required to maintain database of member-OFWs and the provisions of which are contrary to the Constitution and its enabling laws.
to update this regularly. Petitioners alleged that the OWWA was created by law to provide welfare
services to all Filipino overseas contract workers, without limiting the same to
member-contributors only. However, because of the passage of the Omnibus
Section 3. Effectivity of Membership. OWWA membership, either through the
Policies, the OWWA benefits shall be available only to those overseas
compulsory or voluntary coverages, shall be effective upon payment of
contract workers who have paid their monetary contribution on a per contract
membership contribution until expiration of the employment contract.
basis. It imposed on the overseas workers the compulsory payment of
OWWA membership contribution in the amount of US$25.00, which was
In case of voluntary members who register on-site, membership coverage originally collected from their employers. This, petitioners contend, is violative
shall not exceed two (2) years. of the Equal Protection Clause of the Constitution for it created a distinction
between Filipino overseas workers who contributed to the OWWA Fund and
Section 4. Renewal of Membership. Membership shall be renewed upon those who have not. Moreover, petitioners likewise assailed as invalid the
payment of contribution on contract renewal/issuance of new contract. In the provisions which allow the OWWA Board members to designate their proxies
case of voluntary membership, coverage shall be renewed upon payment of to vote in their stead in the Board meetings as well as those which classify
contribution. the minutes, transcripts, and other documents of the OWWA as confidential
and cannot be publicly circulated without authorization from the Board.
Article V
COLLECTION POLICY Respondents countered that the assailed Omnibus Policies do not violate the
equal protection clause for the same is germane to the purpose of the law,
Section 1. Legal Basis for Collection of Membership Contribution. Letter of which requires registration and documentation of overseas workers for their
Instructions (LOI) No. 537 mandates the compulsory payment of OWWA protections from exploitation in foreign countries. Moreover, the prescribed
membership contribution in the amount of US$25.00 or its equivalent. membership fees chargeable to the employers had long been implemented
pursuant to Letter of Instructions (LOI) No. 537 signed by then President
xxxx Ferdinand E. Marcos on May 1, 1977, which was formalized by the issuance
of Presidential Decree (PD) No. 1694 on May 1, 1980, as amended by PD
No. 1809 issued on January 16, 1981, creating the Welfare Fund for
Section 3. Frequency of Membership Collection. The membership
Overseas Workers (hereinafter referred to as the "Welfund"). According to
contribution shall be collected on a per contract basis.
respondents, these issuances expressly instructed the collection of fees for
the promotion of Filipino overseas workers interests. Hence, there was no
xxxx undue implementation of the law. Furthermore, the Omnibus Policies do not
violate petitioners right to free access to information as the approved
Article VIII minutes and official resolutions of the OWWA were made available upon
BENEFITS AND SERVICES legitimate request bythe public, pursuant to OWWA Resolution No. 006,
Series of 2004.
Section 1. Guiding Principle. In pursuance of its mandate, it shall deliver
social insurance benefits, loan assistance, education and training, social On August 31, 2004, the RTC promulgated its Order dismissing the
services and family welfare assistance subject to the qualification complaint for lack of jurisdiction.1wphi1 According to the lower court, the
requirements and availability of OWWA funds. All benefits and services shall determination of constitutionality of the assailed resolution rests, not within its
be over and above the provisions of the employment contract, offer of jurisdiction, but within the jurisdiction of this Court. As such, it ruled that the
employers, or the laws of the receiving country. appropriate remedy to annul and set aside the subject issuance was a
special civil action for certiorari under Rule 65 of the Rules of Court. Thus, for their relation to each other, the issue in that query is factual. On the other
reasons of law, comity and convenience, the lower court held that it could not hand, there is a question of law when the doubt or difference arises as to
arrogate unto itself the authority to resolve the constitutionality of the what the law is on certain state of facts and which does not call for an
administrative act. existence of the probative value of the evidence presented by the parties-
litigants. In a case involving a question of law, the resolution of the issue
On February 18, 2005, petitioners filed the instant petition essentially rests solely on what the law provides on the given set of circumstances.8
invoking the following argument:
In the present petition, the appeal interposed by petitioners stems from the
I. Orders of the RTC dismissing their complaint for lack of jurisdiction. The
issue raised herein is one of jurisdiction over the subject matter, specifically,
whether or not the RTC has jurisdiction over petitioners complaint
THE REGIONAL TRIAL COURT COMMITTED REVERSIBLE ERROR OF
challenging the constitutionality of the Omnibus Policies issued by
LAW IN DISMISSING CIVIL CASE NO. 04-0077 ON THE GROUND OF
LACK OF JURISDICTION FOR REGIONAL TRIAL COURTS HAVE respondents. Jurisdiction is the right to act or the power and authority to hear
ORIGINAL JURISDICTION TO HEAR AND DECIDE CASES INVOLVING and determine a case.9 It is conferred only by the Constitution or by
statute.10 The question as to whether or not the dismissal by the lower court
THE CONSTITUTIONALITY OR VALIDITY OF ADMINISTRATIVE RULES
for lack of jurisdiction is proper involves the determination of whether,
AND REGULATIONS.
admitting the facts alleged in the complaint to be true, the trial court has
jurisdiction over the same in light of the laws governing jurisdiction.11 As
Petitioners fault the RTC for abruptly dismissing their complaint for lack of such, jurisdiction is neither a question of fact or of factand law but a matter of
jurisdiction when it is well established in law and jurisprudence that Regional law. For this reason, We have consistently held thata courts jurisdiction over
Trial Courts have jurisdiction over cases involving the constitutionality or the subject matter of a case is a question of law,12 and have, in fact,
legality of administrative rules and regulations, such as the Omnibus Policies affirmed dismissals by the CA of appeals brought to them involving pure
promulgated by respondents herein. The reliance on our ruling in Fortich v. questions of law.13 Considering that only questions of law was raised in this
Corona, petitioners posit, is misplaced for the same involves a resolution petition, direct resort to this Court is proper.14
issued by the Office of the President in the exercise of its quasi-
judicialfunctions. Hence, the special civil action for certiorari under Rule 65 of
We cannot, therefore, give credenceto the lower courts contention that the
the Rules of Court isnot the appropriate remedy in the instant case. In their
appropriate remedy to annul and set aside the issuance subject of this case
Comment, respondents counter that petitioners, in filing the instant action
is a special civil action for certiorari under Rule 65 of the Rules of Court.
with this Court, committed serious procedural error for violating the doctrine
of judicial hierarchy of courts. According to respondents, petitioners should Certiorari, as a special civil action, is available only if: (1) it is directed against
have first filed an appeal before the Court of Appeals (CA), pursuant to a tribunal, board, or officer exercising judicial or quasijudicial functions; (2)
the tribunal, board, or officer acted without or in excess of jurisdiction or with
Section 2(a), Rule 41 of the Rules of Court.6 Respondents further reiterated
grave abuse of discretion amounting to lack or excess of jurisdiction; and (3)
the validity of the subject Omnibus Policies.
there isno appeal nor any plain, speedy, and adequate remedy in the
ordinary course of law.15
We rule in favor of petitioners.
In this case, respondents did not act in any judicial or quasi-judicial capacity
Section 2(c), Rule 41 of the Rules ofCourt provides that the mode of appeal in issuing the assailed resolution. They were not called upon to adjudicate
in all cases involving only questions of law shall be by petition for review on the rights of contending parties to exercise, in any manner, discretion of a
certiorarito the Supreme Court in accordance with Rule 45.7 judicial nature. Instead, their issuance of the challenged resolution was done
in the exerciseof their quasi-legislative and administrative functions within the
Time and again, this Court has distinguished cases involving pure questions confines of the granting law. Hence, contrary to the lower courts contention,
of law from those of pure questions of fact in the following manner: certiorari is not the proper remedy in the instant case.

A question of fact exists when a doubt or difference arises as to the truth or As to whether the RTC has jurisdiction over the subject matter involved in
falsity of alleged facts. If the query requires a re-evaluation of the credibility this case, it is settled in law and jurisprudence that the RTC has jurisdiction
of witnesses or the existence or relevance of surrounding circumstances and to resolve the constitutionality of a statute, presidential decree, executive
order, or administrative regulation, as recognized in Section 2(a), Article VIII
of the 1987 Constitution, which provides:

SECTION 5. The Supreme Court shall have the following powers:

xxxx

(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 validityof any treaty, international
or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulationis in question.16

In view of the foregoing provision, the jurisdiction of regular courts involving


the validity or constitutionality of a rule or regulation cannot be denied. We
have had several occasions wherein We affirmed the power of the RTC to
take cognizance of actions assailing a specific rule or set of rules
promulgated by administrative bodies for the power of judicial review is
vested by the Constitution not only in this Court but in all Regional Trial
Courts.17 It was, therefore, erroneous for the RTC to abruptly dismiss the
complaint filed by petitioners on the basis of lack of jurisdiction since said
court clearly had the power to take cognizance of the same. In so doing, the
lower court failed to ascertain factual issues necessary to determine whether
the subject issuance is, indeed, invalid and violative of the Constitution.
Considering the settled rule that this Court is not a trier of facts,18 a remand
of this case to the RTC for the proper determination of the merits of the
complaint is just and proper.

WHEREFORE, premises considered, the instant petition is GRANTED. The


Orders of the Regional Trial Court, dated August 31, 2004 and January 14,
2005, in Civil Case No. 04-0077, are REVERSED and SET ASIDE. This case
is hereby REMANDED to the Regional Trial Court, Branch CXI (111), Pasay
City, for further proceedings.

SO ORDERED.
G.R. No. 205728 January 21, 2015 classified according to their vote on the adoption of Republic Act No. 10354,
otherwise known as the RH Law.6 Those who voted for the passing of the
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. law were classified by petitioners as comprising "Team Patay," while those
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS who voted against it form "Team Buhay":7
PERSONAL CAPACITY, Petitioners,
vs. TEAM BUHAY TEAM PATAY
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents. Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casio, Teddy
DECISION
Magsaysay, Mitos Cayetano, Alan Peter
LEONEN, J.:
Pimentel, Koko Enrile, Jackie
"The Philippines is a democratic and republican State. Sovereignty resides in Trillanes, Antonio Escudero, Francis
the people and all government authority emanates from them." Article II,
Section 1, Constitution Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
All governmental authority emanates from our people. No unreasonable
restrictions of the fundamental and preferred right to expression of the Party List Ang Pamilya Party List Gabriela
electorate during political contests no matter how seemingly benign will be Party List Akbayan
tolerated.
Party List Bayan Muna
This case defines the extent that our people may shape the debates during Party List Anak Pawis
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to
limit expressions made by the citizens who are not candidates during During oral arguments, respondents conceded that the tarpaulin was neither
elections. sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of
Before us is a special civil action for certiorari and prohibition with application politicians who helped in the passage of the RH Law but were not candidates
for preliminary injunction and temporary restraining order1 under Rule 65 of for that election.
the Rules of Court seeking to nullify COMELECs Notice to Remove
Campaign Materials2 dated February 22, 2013 and letter3 issued on On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity
February 27, 2013. as Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra.
The facts are not disputed. The election officer ordered the tarpaulins removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2) by three feet (3).9
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size. They were posted on On February 25, 2013, petitioners replied10 requesting, among others, that
the front walls of the cathedral within public view. The first tarpaulin contains (1) petitioner Bishop be given a definite ruling by COMELEC Law
the message "IBASURA RH Law" referring to the Reproductive Health Law Department regarding the tarpaulin; and (2) pending this opinion and the
of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the availment of legal remedies, the tarpaulin be allowed to remain.11
present case.4 This tarpaulin contains the heading "Conscience Vote" and
lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or On February 27, 2013, COMELEC Law Department issued a letter12
"(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were ordering the immediate removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against petitioners. The letter of Concerned about the imminent threatof prosecution for their exercise of free
COMELEC Law Department was silenton the remedies available to speech, petitioners initiated this case through this petition for certiorari and
petitioners. The letter provides as follows: prohibition with application for preliminary injunction and temporary
restraining order.14 They question respondents notice dated February 22,
Dear Bishop Navarra: 2013 and letter issued on February 27, 2013. They pray that: (1) the petition
be given due course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards proceeding in enforcing their orders for the removal of the Team Patay
the election propaganda material posted on the church vicinity promoting for tarpaulin; and (3) after notice and hearing, a decision be rendered declaring
the questioned orders of respondents as unconstitutional and void, and
or against the candidates and party-list groups with the following names and
permanently restraining respondents from enforcing them or any other similar
messages, particularly described as follows:
order.15
Material size : six feet (6) by ten feet (10)
After due deliberation, this court, on March 5, 2013, issued a temporary
restraining order enjoining respondents from enforcing the assailed notice
Description : FULL COLOR TARPAULIN and letter, and set oral arguments on March 19, 2013.16

Image of : SEE ATTACHED PICTURES On March 13, 2013, respondents filed their comment17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
Message : CONSCIENCE VOTE (ANTI RH) TEAM before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to
BUHAY; (PRO RH) TEAM PATAY regulation by COMELEC pursuant to its mandate under Article IX-C, Section
4 of the Constitution. Hence, respondents claim that the issuances ordering
Location : POSTED ON THE CHURCH VICINITY its removal for being oversized are valid and constitutional.18
OF THE DIOCESE OF BACOLOD CITY
During the hearing held on March 19, 2013, the parties were directed to file
The three (3) day notice expired on February 25, 2013. their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly The issues, which also served as guide for the oral arguments, are:20
on the size (even with the subsequent division of the said tarpaulin into two),
as the lawful size for election propaganda material is only two feet (2) by I.
three feet (3), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
offense case against you. OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
We pray that the Catholic Church will be the first institution to help the ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT
Commission on Elections inensuring the conduct of peaceful, orderly, honest A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
and credible elections.
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY
Thank you and God Bless! OF COURTS DOCTRINE AND JURISPRUDENTIAL RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;
[signed]
ATTY. ESMERALDA AMORA-LADRA B. ASSUMING ARGUENDO THAT THE
Director IV13 AFOREMENTIONED ORDERS ARE NOT CONSIDERED
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE This courts jurisdiction over COMELEC cases
COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT Respondents ask that this petition be dismissed on the ground that the notice
TO TAKE COGNIZANCE OF THE CASE[;] and letter are not final orders, decisions, rulings, or judgments of the
COMELEC En Banc issued in the exercise of its adjudicatory powers,
II. reviewable via Rule 64 of the Rules of Court.21

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION applicable especially to raise objections relating to a grave abuse of
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL discretion resulting in the ouster of jurisdiction.22 As a special civil action,
CANDIDATE[;] there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
III.
Respondents contend that the assailed notice and letter are not subject to
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION review by this court, whose power to review is "limited only to final decisions,
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL rulings and orders of the COMELEC En Banc rendered in the exercise of its
ADVERTISEMENT[;] adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELECs power to
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE
decide all questions affecting elections.25 Respondents invoke the cases of
A FORM OF EXPRESSION, WHETHER THE COMELEC
Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
POSSESSES THE AUTHORITY TO REGULATE THE
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
SAME[;]
illustrate how judicialintervention is limited to final decisions, orders, rulings
and judgments of the COMELEC En Banc.31
B. WHETHER THIS FORM OF EXPRESSION MAY BE
REGULATED[;]
These cases are not applicable.
IV.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of
Eastern Samar filed the election protest.32 At issue was the validity of the
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION promulgation of a COMELEC Division resolution.33 No motion for
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE reconsideration was filed to raise this issue before the COMELEC En Banc.
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF This court declared that it did not have jurisdiction and clarified:
SEPARATION OF CHURCH AND STATE[;] [AND]
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean
V. final orders, rulings and decisionsof the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers." This decision must be a final
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS decision or resolution of the Comelec en banc, not of a division, certainly not
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF an interlocutory order of a division.The Supreme Court has no power to
SEPARATION OF CHURCH AND STATE. review viacertiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections.35 (Emphasis in the original,
I citations omitted)
PROCEDURAL ISSUES
However, in the next case cited by respondents, Repol v. COMELEC, this
I.A court provided exceptions to this general rule. Repolwas another election
protest case, involving the mayoralty elections in Pagsanghan, Samar.36
This time, the case was brought to this court because the COMELEC First Blanco v. COMELEC, another case cited by respondents, was a
Division issued a status quo ante order against the Regional Trial Court disqualification case of one of the mayoralty candidates of Meycauayan,
executing its decision pending appeal.37 This courts ponencia discussed the Bulacan.45 The COMELEC Second Division ruled that petitioner could not
general rule enunciated in Ambil, Jr. that it cannot take jurisdiction to review qualify for the 2007 elections due to the findings in an administrative case
interlocutory orders of a COMELEC Division.38 However, consistent with that he engaged in vote buying in the 1995 elections.46 No motion for
ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the reconsideration was filed before the COMELEC En Banc. This court,
exception: however, took cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47
This Court, however, has ruled in the past that this procedural requirement
[of filing a motion for reconsideration] may be glossed over to prevent Finally, respondents cited Cayetano v. COMELEC, a recent election protest
miscarriage of justice, when the issue involves the principle of social justice case involving the mayoralty candidates of Taguig City.48 Petitioner assailed
or the protection of labor, when the decision or resolution sought to be set a resolution of the COMELEC denying her motion for reconsideration to
aside is a nullity, or when the need for relief is extremely urgent and certiorari dismiss the election protest petition for lack of form and substance.49 This
is the only adequate and speedy remedy available.40 court clarified the general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions in ABS-CBN, this
Based on ABS-CBN, this court could review orders and decisions of court ruled that these exceptions did not apply.50
COMELEC in electoral contests despite not being reviewed by the
COMELEC En Banc, if: Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents
do not operate as precedents to oust this court from taking jurisdiction over
1) It will prevent the miscarriage of justice; this case. All these cases cited involve election protests or disqualification
cases filed by the losing candidate against the winning candidate.
2) The issue involves a principle of social justice;
In the present case, petitioners are not candidates seeking for public office.
3) The issue involves the protection of labor; Their petition is filed to assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELECs


4) The decision or resolution sought tobe set aside is a nullity; or
exercise of its adjudicatory or quasi-judicial power. This case pertains to acts
of COMELEC in the implementation of its regulatory powers. When it issued
5) The need for relief is extremely urgent and certiorari is the only the notice and letter, the COMELEC was allegedly enforcingelection laws.
adequate and speedy remedy available.
I.B
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Rule 65, grave abuse of discretion,
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
and limitations on political speech
election protest case involving candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELECs notice and letter.
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the
general rule that only final orders should be questioned with this court. The Petitioners allege that respondents committed grave abuse of discretion
ponencia for this court, however, acknowledged the exceptions to the amounting to lack or excess of jurisdiction in issuing the notice51 dated
general rule in ABS-CBN.44 February 22,2013 and letter52 dated February 27, 2013 ordering the removal
of the tarpaulin.53 It is their position that these infringe on their fundamental
right to freedom of expression and violate the principle of separation of On the other hand, respondents relied on its constitutional mandate to decide
church and state and, thus, are unconstitutional.54 all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
provides:
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the Sec. 2. The Commission on Elections shall exercise the following powers
authority "to hear and determine cases of the general class to which the and functions:
proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers."55 Definitely, the subject ....
matter in this case is different from the cases cited by respondents.
(3) Decide, except those involving the right to vote, all questions affecting
Nothing less than the electorates political speech will be affected by the elections, including determination of the number and location of polling
restrictions imposed by COMELEC. Political speech is motivated by the places, appointment of election officials and inspectors, and registration of
desire to be heard and understood, to move people to action. It is concerned voters.
with the sovereign right to change the contours of power whether through the
election of representatives in a republican government or the revision of the
Respondents reliance on this provision is misplaced.
basic text of the Constitution. The zeal with which we protect this kind of
speech does not depend on our evaluation of the cogency of the message.
Neither do we assess whether we should protect speech based on the We are not confronted here with the question of whether the COMELEC, in
motives of COMELEC. We evaluate restrictions on freedom of expression its exercise of jurisdiction, gravely abused it. We are confronted with the
from their effects. We protect both speech and medium because the quality question as to whether the COMELEC had any jurisdiction at all with its acts
of this freedom in practice will define the quality of deliberation in our threatening imminent criminal action effectively abridging meaningful political
democratic society. speech.

COMELECs notice and letter affect preferred speech. Respondents acts are It is clear that the subject matter of the controversy is the effect of
capable of repetition. Under the conditions in which it was issued and in view COMELECs notice and letter on free speech. This does not fall under Article
of the novelty of this case,it could result in a "chilling effect" that would affect IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this
other citizens who want their voices heard on issues during the elections. provision cannot be interpreted to mean that COMELEC has the exclusive
Other citizens who wish to express their views regarding the election and power to decide any and allquestions that arise during elections.
other related issues may choose not to, for fear of reprisal or sanction by the COMELECs constitutional competencies during elections should not operate
COMELEC. Direct resort to this court is allowed to avoid such proscribed to divest this court of its own jurisdiction.
conditions. Rule 65 is also the procedural platform for raising grave abuse of
discretion. The more relevant provision for jurisdiction in this case is Article VIII, Section
5(1) of the Constitution.This provision provides for this courts original
Both parties point to constitutional provisions on jurisdiction. For petitioners, it jurisdiction over petitions for certiorari and prohibition. This should be read
referred to this courts expanded exercise of certiorari as provided by the alongside the expanded jurisdiction of the court in Article VIII, Section 1 of
Constitution as follows: the Constitution.

Judicial power includes the duty of the courts of justice to settle actual Certainly, a breach of the fundamental right of expression by COMELEC is
controversies involving rights which are legally demandable and enforceable, grave abuse of discretion. Thus, the constitutionality of the notice and letter
and to determine whether ornot there has been a grave abuse of discretion coming from COMELEC is within this courts power to review.
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56 (Emphasis supplied) During elections, we have the power and the duty to correct any grave abuse
of discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the
COMELEC. Furthermore, it is this courts constitutional mandate to protect
the people against governments infringement of their fundamental rights.
This constitutional mandate out weighs the jurisdiction vested with the The Supreme Court is a court of lastresort, and must so remain if it is to
COMELEC. satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task
It will, thus, be manifest injustice if the court does not take jurisdiction over of dealing with causes in the first instance. Its original jurisdiction to issue the
this case. so-called extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore. Hence,
that jurisdiction should generally be exercised relative to actions or
I.C
proceedings before the Court of Appeals, or before constitutional or other
tribunals, bodies or agencies whose acts for some reason or another are not
Hierarchy of courts controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial
This brings us to the issue of whether petitioners violated the doctrine of Court, it is in either of these courts that the specific action for the writs
hierarchy of courts in directly filing their petition before this court. procurement must be presented. This is and should continue to be the policy
in this regard, a policy that courts and lawyers must strictly observe.66
Respondents contend that petitioners failure to file the proper suit with a (Emphasis omitted)
lower court of concurrent jurisdiction is sufficient ground for the dismissal of
their petition.57 They add that observation of the hierarchy of courts is The doctrine that requires respect for the hierarchy of courts was created by
compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents this court to ensure that every level of the judiciary performs its designated
claim that while there are exceptions to the general rule on hierarchy of roles in an effective and efficient manner. Trial courts do not only determine
courts, none of these are present in this case.59 the facts from the evaluation of the evidence presented before them. They
are likewise competent to determine issues of law which may include the
On the other hand, petitioners cite Fortich v. Corona60 on this courts validity of an ordinance, statute, or even an executive issuance in relation to
discretionary power to take cognizance of a petition filed directly to it if the Constitution.67 To effectively perform these functions, they are
warranted by "compelling reasons, or [by] the nature and importance of the territorially organized into regions and then into branches. Their writs
issues raised. . . ."61 Petitioners submit that there are "exceptional and generally reach within those territorial boundaries. Necessarily, they mostly
compelling reasons to justify a direct resort [with] this Court."62 perform the all-important task of inferring the facts from the evidence as
these are physically presented before them. In many instances, the facts
In Baez, Jr. v. Concepcion,63 we explained the necessity of the application occur within their territorial jurisdiction, which properly present the actual
of the hierarchy of courts: case that makes ripe a determination of the constitutionality of such action.
The consequences, of course, would be national in scope. There are,
however, some cases where resort to courts at their level would not be
The Court must enjoin the observance of the policy on the hierarchy of
practical considering their decisions could still be appealed before the higher
courts, and now affirms that the policy is not to be ignored without serious
courts, such as the Court of Appeals.
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence of
the lower courts, and thus leave time to the Court to deal with the more The Court of Appeals is primarily designed as an appellate court that reviews
fundamental and more essential tasks that the Constitution has assigned to the determination of facts and law made by the trial courts. It is collegiate in
it. The Court may act on petitions for the extraordinary writs of certiorari, nature. This nature ensures more standpoints in the review of the actions of
prohibition and mandamus only when absolutely necessary or when serious the trial court. But the Court of Appeals also has original jurisdiction over
and important reasons exist to justify an exception to the policy.64 most special civil actions. Unlike the trial courts, its writs can have a
nationwide scope. It is competent to determine facts and, ideally, should act
on constitutional issues thatmay not necessarily be novel unless there are
In Baez, we also elaborated on the reasons why lower courts are allowed to
factual questions to determine.
issue writs of certiorari, prohibition, and mandamus, citing Vergara v.
Suelto:65
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating in the light of new circumstances or in the light of some
confusions of bench or bar existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court right to engage in free expression of ideas must be given immediate
promulgates these doctrinal devices in order that it truly performs that role. protection by this court.

In other words, the Supreme Courts role to interpret the Constitution and act A second exception is when the issuesinvolved are of transcendental
in order to protect constitutional rights when these become exigent should importance.74 In these cases, the imminence and clarity of the threat to
not be emasculated by the doctrine in respect of the hierarchy of courts. That fundamental constitutional rights outweigh the necessity for prudence. The
has never been the purpose of such doctrine. doctrine relating to constitutional issues of transcendental importance
prevents courts from the paralysis of procedural niceties when clearly faced
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court with the need for substantial protection.
has "full discretionary power to take cognizance and assume jurisdiction
[over] special civil actions for certiorari . . .filed directly with it for exceptionally In the case before this court, there is a clear threat to the paramount right of
compelling reasons69 or if warranted by the nature of the issues clearly and freedom of speech and freedom of expression which warrants invocation of
specifically raised in the petition."70 As correctly pointed out by petitioners,71 relief from this court. The principles laid down in this decision will likely
we have provided exceptions to this doctrine: influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote
First, a direct resort to this court is allowed when there are genuine issues of for ones chosen candidate, but also the right to vocalize that choice to the
constitutionality that must be addressed at the most immediate time. A direct public in general, in the hope of influencing their votes. It may be said that in
resort to this court includes availing of the remedies of certiorari and an election year, the right to vote necessarily includes the right to free
prohibition toassail the constitutionality of actions of both legislative and speech and expression. The protection of these fundamental constitutional
executive branches of the government.72 rights, therefore, allows for the immediate resort to this court.

In this case, the assailed issuances of respondents prejudice not only Third, cases of first impression75 warrant a direct resort to this court. In
petitioners right to freedom of expression in the present case, but also of cases of first impression, no jurisprudence yet exists that will guide the lower
others in future similar cases. The case before this court involves an active courts on this matter. In Government of the United States v. Purganan,76 this
effort on the part of the electorate to reform the political landscape. This has court took cognizance of the case as a matter of first impression that may
become a rare occasion when private citizens actively engage the public in guide the lower courts:
political discourse. To quote an eminent political theorist:
In the interest of justice and to settle once and for all the important issue of
[T]he theory of freedom of expression involves more than a technique for bail in extradition proceedings, we deem it best to take cognizance of the
arriving at better social judgments through democratic procedures. It present case. Such proceedings constitute a matter of first impression over
comprehends a vision of society, a faith and a whole way of life. The theory which there is, as yet, no local jurisprudence to guide lower courts.77
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers This court finds that this is indeed a case of first impression involving as it
of reason, and his prospects of creating a rational and enlightened civilization does the issue of whether the right of suffrage includes the right of freedom
virtually unlimited. It is put forward as a prescription for attaining a creative, of expression. This is a question which this court has yet to provide
progressive, exciting and intellectually robust community. It contemplates a substantial answers to, through jurisprudence. Thus, direct resort to this court
mode of life that, through encouraging toleration, skepticism, reason and is allowed.
initiative, will allow man to realize his full potentialities.It spurns the
alternative of a society that is tyrannical, conformist, irrational and Fourth, the constitutional issues raisedare better decided by this court. In
stagnant.73 Drilon v. Lim,78 this court held that:

In a democracy, the citizens right tofreely participate in the exchange of . . . it will be prudent for such courts, if only out of a becoming modesty, to
ideas in furtherance of political decision-making is recognized. It deserves defer to the higher judgmentof this Court in the consideration of its validity,
the highest protection the courts may provide, as public participation in which is better determined after a thorough deliberation by a collegiate body
nation-building isa fundamental principle in our Constitution. As such, their
and with the concurrence of the majority of those who participated in its doctrine of hierarchy of courts included citizens right to bear arms,83
discussion.79 (Citation omitted) government contracts involving modernization of voters registration lists,84
and the status and existence of a public office.85
In this case, it is this court, with its constitutionally enshrined judicial power,
that can rule with finality on whether COMELEC committed grave abuse of This case also poses a question of similar, if not greater import. Hence, a
discretion or performed acts contrary to the Constitution through the assailed direct action to this court is permitted.
issuances.
It is not, however, necessary that all of these exceptions must occur at the
Fifth, the time element presented in this case cannot be ignored. This case same time to justify a direct resort to this court. While generally, the hierarchy
was filed during the 2013 election period. Although the elections have of courts is respected, the present case falls under the recognized
already been concluded, future cases may be filed that necessitate urgency exceptions and, as such, may be resolved by this court directly.
in its resolution. Exigency in certain situations would qualify as an exception
for direct resort to this court. I.D

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is The concept of a political question
a constitutional body. In Albano v. Arranz,80 cited by petitioners, this court
held that "[i]t is easy to realize the chaos that would ensue if the Court of Respondents argue further that the size limitation and its reasonableness is a
First Instance ofeach and every province were [to] arrogate itself the power political question, hence not within the ambit of this courts power of review.
to disregard, suspend, or contradict any order of the Commission on
They cite Justice Vitugs separate opinion in Osmea v. COMELEC86 to
Elections: that constitutional body would be speedily reduced to
support their position:
impotence."81
It might be worth mentioning that Section 26, Article II, of the Constitution
In this case, if petitioners sought to annul the actions of COMELEC through also states that the "State shall guarantee equal access to opportunities for
pursuing remedies with the lower courts, any ruling on their part would not
public service, and prohibit political dynasties as may be defined by law." I
have been binding for other citizens whom respondents may place in the
see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to be
same situation. Besides, thiscourt affords great respect to the Constitution
all that adversarial or irreconcilably inconsistent with the right of free
and the powers and duties imposed upon COMELEC. Hence, a ruling by this
expression. In any event, the latter, being one of general application, must
court would be in the best interest of respondents, in order that their actions yield to the specific demands of the Constitution. The freedom of expression
may be guided accordingly in the future.
concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the The case is not about a fight between the "rich" and the "poor" or between
injurious effects of respondents acts in violation of their right to freedom of the "powerful" and the "weak" in our society but it is to me a genuine attempt
expression.
on the part of Congress and the Commission on Elections to ensure that all
candidates are given an equal chance to media coverage and thereby be
In this case, the repercussions of the assailed issuances on this basic right equally perceived as giving real life to the candidates right of free expression
constitute an exceptionally compelling reason to justify the direct resort to rather than being viewed as an undue restriction of that freedom. The
this court. The lack of other sufficient remedies in the course of law alone is wisdom in the enactment of the law, i.e., that which the legislature deems to
sufficient ground to allow direct resort to this court. be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court
Eighth, the petition includes questionsthat are "dictated by public welfare and to pass upon.87
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the This separate opinion is cogent for the purpose it was said. But it is not in
appeal was consideredas clearly an inappropriate remedy."82 In the past, point in this case.
questions similar to these which this court ruled on immediately despite the
The present petition does not involve a dispute between the rich and poor, or the petition asks this court to nullify certain acts that are exclusively within the
the powerful and weak, on their equal opportunities for media coverage of domain of their respective competencies, as provided by the Constitution or
candidates and their right to freedom of expression. This case concerns the the law. In such situation, presumptively, this court should act with deference.
right of petitioners, who are non-candidates, to post the tarpaulin in their It will decline to void an act unless the exercise of that power was so
private property, asan exercise of their right of free expression. Despite the capricious and arbitrary so as to amount to grave abuse of discretion.
invocation of the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case. The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual
In Taada v. Cuenco,88 this court previously elaborated on the concept of or collective right. Even assuming arguendo that the COMELEC did have the
what constitutes a political question: discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
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 Marcos v. Manglapus90 limited the use of the political question doctrine:
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary When political questions are involved, the Constitution limits the
power to act.89 (Emphasis omitted) determination 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
It is not for this court to rehearse and re-enact political debates on what the action is being questioned. If grave abuse is not established, the Court will
text of the law should be. In political forums, particularly the legislature, the not substitute its judgment for that of the official concerned and decide a
creation of the textof the law is based on a general discussion of factual matter which by its nature or by law is for the latter alone to decide.91
circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular How this court has chosen to address the political question doctrine has
and specific facts that affect the rights of certain individuals, per se. undergone an evolution since the timethat it had been first invoked in Marcos
v. Manglapus. Increasingly, this court has taken the historical and social
Courts, on the other hand, rule on adversarial positions based on existing context of the case and the relevance of pronouncements of carefully and
facts established on a specific case-to-case basis, where parties affected by narrowly tailored constitutional doctrines. This trend was followed in cases
the legal provision seek the courts understanding of the law. such as Daza v. Singson92 and Coseteng v. Mitra Jr.93

The complementary nature of the political and judicial branches of Daza and Coseteng involved a question as to the application of Article VI,
government is essential in order to ensure that the rights of the general Section 18 of the 1987 Constitution involving the removal of petitioners from
public are upheld at all times. In order to preserve this balance, branches of the Commission on Appointments. In times past, this would have involved a
government must afford due respectand deference for the duties and quint essentially political question as it related to the dominance of political
functions constitutionally delegated to the other. Courts cannot rush to parties in Congress. However, in these cases, this court exercised its power
invalidate a law or rule. Prudence dictates that we are careful not to veto of judicial review noting that the requirement of interpreting the constitutional
political acts unless we can craft doctrine narrowly tailored to the provision involved the legality and not the wisdom of a manner by which a
circumstances of the case. constitutional duty or power was exercised. This approach was again
reiterated in Defensor Santiago v. Guingona, Jr.94
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court In Integrated Bar of the Philippines v. Zamora,95 this court declared again
through the expanded jurisdiction granted to this court through Article VIII, that the possible existence ofa political question did not bar an examination
Section 1 of the Constitution. of whether the exercise of discretion was done with grave abuse of
discretion. In that case, this court ruled on the question of whether there was
A political question arises in constitutional issues relating to the powers or grave abuse of discretion in the Presidents use of his power to call out the
competence of different agencies and departments of the executive or those armed forces to prevent and suppress lawless violence.
of the legislature. The political question doctrine is used as a defense when
In Estrada v. Desierto,96 this court ruled that the legal question as to whether Francisco also provides the cases which show the evolution of the political
a former President resigned was not a political question even if the question, as applied in the following cases:
consequences would be to ascertain the political legitimacy of a successor
President. In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
Many constitutional cases arise from political crises. The actors in such doctrine and broadens the scope of judicial inquiry into areas which the
crises may use the resolution of constitutional issues as leverage. But the Court,under previous constitutions, would have normally left to the political
expanded jurisdiction of this court now mandates a duty for it to exercise its departments to decide. x x x
power of judicial review expanding on principles that may avert catastrophe
or resolve social conflict. In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
Padilla, this Court declared:
This courts understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held: 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
While it is true that courts cannot inquire into the manner in which the political question doctrine neither interposes an obstacle to judicial
President's discretionary powers are exercised or into the wisdom for its determination of the rival claims. The jurisdiction to delimit constitutional
exercise, it is also a settled rule that when the issue involved concerns the boundaries has been given to this Court. It cannot abdicate that obligation
validity of such discretionary powers or whether said powers are within the mandated by the 1987 Constitution, although said provision by no means
limits prescribed by the Constitution, We will not decline to exercise our does away with the applicability of the principle in appropriate cases."
power of judicial review. And such review does not constitute a modification (Emphasis and italics supplied)
or correction of the act of the President, nor does it constitute interference
with the functions of the President.98 And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
The concept of judicial power in relation to the concept of the political
question was discussed most extensively in Francisco v. HRET.99 In this In the case now before us, the jurisdictional objection becomes even less
case, the House of Representatives arguedthat the question of the validity of tenable and decisive. The reason is that, even if we were to assume that the
the second impeachment complaint that was filed against former Chief issue presented before us was political in nature, we would still not be
Justice Hilario Davide was a political question beyond the ambit of this court. precluded from resolving it under the expanded jurisdiction conferred upon
Former Chief Justice Reynato Puno elaborated on this concept in his us that now covers, in proper cases, even the political question.x x x
concurring and dissenting opinion: (Emphasis and italics supplied.)

To be sure, the force to impugn the jurisdiction of this Court becomes more ....
feeble in light of the new Constitution which expanded the definition of
judicial power as including "the duty of the courts of justice to settle actual
In our jurisdiction, the determination of whether an issue involves a truly
controversies involving rights which are legally demandable and enforceable,
political and non-justiciable question lies in the answer to the question of
and to determine whether or not there has been a grave abuse of discretion
whether there are constitutionally imposed limits on powers or functions
amounting to lack or excess of jurisdiction on the part of any branch or
conferred upon political bodies. If there are, then our courts are duty-bound
instrumentality of the Government." As well observed by retired Justice to examine whether the branch or instrumentality of the government properly
Isagani Cruz, this expanded definition of judicial power considerably acted within such limits.101 (Citations omitted)
constricted the scope of political question. He opined that the language
luminously suggests that this duty (and power) is available even against the
executive and legislative departments including the President and the As stated in Francisco, a political question will not be considered justiciable if
Congress, in the exercise of their discretionary powers.100 (Emphasis in the there are no constitutionally imposed limits on powers or functions conferred
original, citations omitted) upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review
of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free expression, the subject of fair and honest elections would be at the top."108
speech. Any instance that this right may be abridged demands judicial Sovereignty resides in the people.109 Political speech is a direct exercise of
scrutiny. It does not fall squarely into any doubt that a political question the sovereignty. The principle of exhaustion of administrative remedies yields
brings. in order to protect this fundamental right.

I.E Even assuming that the principle of exhaustion of administrative remedies is


applicable, the current controversy is within the exceptions to the principle. In
Exhaustion of administrative remedies Chua v. Ang,110 this court held:

Respondents allege that petitioners violated the principle of exhaustion of On the other hand, prior exhaustion of administrative remedies may be
administrative remedies. Respondents insist that petitioners should have first dispensed with and judicial action may be validly resorted to immediately: (a)
brought the matter to the COMELEC En Banc or any of its divisions.102 when there is a violation of due process; (b) when the issue involved is
purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the
Respondents point out that petitioners failed to comply with the requirement
part ofthe administrative agency concerned; (e) when there is irreparable
in Rule 65 that "there is no appeal, or any plain, speedy, and adequate
injury; (f) when the respondent is a department secretary whose acts as
remedy in the ordinary course of law."103 They add that the proper venue to
analter ego of the President bear the implied and assumed approval of the
assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that latter; (g) when to require exhaustion of administrative remedies would be
an election offense is filed against petitioners for posting the tarpaulin, they unreasonable; (h) when it would amount to a nullification of a claim; (i) when
the subject matter is a private land in land case proceedings; (j) whenthe rule
claim that petitioners should resort to the remedies prescribed in Rule 34 of
does not provide a plain, speedy and adequate remedy; or (k) when there
the COMELEC Rules of Procedure.105
are circumstances indicating the urgency of judicial intervention."111
(Emphasis supplied, citation omitted)
The argument on exhaustion of administrative remedies is not proper in this
case.
The circumstances emphasized are squarely applicable with the present
case. First, petitioners allegethat the assailed issuances violated their right to
Despite the alleged non-exhaustion of administrative remedies, it is clear that freedom of expression and the principle of separation of church and state.
the controversy is already ripe for adjudication. Ripeness is the "prerequisite This is a purely legal question. Second, the circumstances of the present
that something had by then been accomplished or performed by either case indicate the urgency of judicial intervention considering the issue then
branch [or in this case, organ of government] before a court may come into on the RH Law as well as the upcoming elections. Thus, to require the
the picture."106 exhaustion of administrative remedies in this case would be unreasonable.

Petitioners exercise of their rightto speech, given the message and their Time and again, we have held that this court "has the power to relax or
medium, had understandable relevance especially during the elections. suspend the rules or to except a case from their operation when compelling
COMELECs letter threatening the filing of the election offense against reasons so warrant, or whenthe purpose of justi